The Standards: Freedom of Information Law ("FOIL") REQUEST FOR RECORDS.
The Truths: Although City of North Tonawanda City Attorney's Office has been prompt in its response to the "FOIL" Request for Records, by letter dated December 27, 2007, North Tonawanda Assistant City Attorney Robert Sondel responds to my correspondence dated 21 December 2007, to City Attorney Shawn Nickerson, regarding an apparent failure to comply with "FOIL" Request for Records:
"Dear Ms. Mangus:
In response to your letter dated 12/21/07, regarding the City's response to your FOIL request, please be advised that the information provided to you was the only information provided to this office from the North Tonawanda Police Department. Recordings of telephone conversations are kept by the City for 30 days only, so those are no longer in existence. Also, the NTPD states that there are no photos to correspond with your request, although we asked that they check again to be sure.
Lastly, the Manual for Standard Operating Procedures and Rules and Regulations for the North Tonawanda Police Department could be provided to you at a cost of $85.75 (343 pages at $.25 each).
We have not denied any part of your request, but have provided to you the information that is still available. Should you have any questions, please do not hesitate to contact this office.
Very truly yours,
Robert Sondel/a
Assistant City Attorney"
Chief Szukala, NTPD was copied on Assistant City Attorney Robert Sondel's correspondence.
Assistant City Attorney Sondel, conveys NTPD "states that there are no photos to correspond with your request,..." yet there is evidence that photographs were in fact taken of the crime scenes by North Tonawanda Police Detective Captain Hall and Detective Kalota on October 7, 2005 and by Lieutenant Mahoney on October 11, 2005. Therefore, consistent with "FOIL", the City must provide an explanation as to why the information is no longer available.
Evidence gathered at crime scenes can not simply be destroyed by the agency. If the photographs taken of the crime scenes by Detective Captain Hall and Detective Kalota on October 7, 2005 and, again in a separate bomb threat, on October 11, 2005 by Lieutenant Mahoney were in fact destroyed, the agency must state this in writing and include the date of and authority for such destruction.
Furthermore, Assistant City Attorney Sondel's correspondence fails to provide an explanation as to why "No Report [Was] Required" for an alleged bomb threat occurring at North Tonawanda High School on 12 October 2005.
The correspondence also fails to provide an explanation for the apparent over-charge by City of North Tonawanda Office of the City Attorney for the cost of copying records ($11.25/11 pages) and, Assistant City Attorney Sondel fails to provide the name, address and email address, of the person or body to whom an appeal can be directed.
The foregoing information has again been requested by letter dated 28 December 2007 to Assistant City Attorney Sondel; City Attorney Nickerson was copied.
Saturday, December 29, 2007
Thursday, December 27, 2007
North Tonawanda City Attorney Shawn Nickerson's Response to "FOIL" Request Fails to Comply With NYS Laws and Procedures
The Standards: An agency is required by law to notify the requester in writing when, among other matters, any part of the "FOIL" request will be denied. Furthermore, if any part of the request is denied, an agency is also required by law to notify the requester in writing the reasons for the denial and provide the name, address and email address of the person or body to whom an appeal should be directed. Additionally, an agency may charge up to twenty-five cents ($.25) per photocopy not in excess of nine by fourteen inches, or in the case of records that can not be photocopied, the actual cost of reproduction, unless otherwise prescribed by statute.
The Truths: On 17 December 2007, after a "No Reply" from North Tonawanda City Chief of Police Randy Szukala who defied NYS laws and procedures to "FOIL" Request for Records related to all bomb threats occurring at North Tonawanda High School, located at 405 Meadow Drive, North Tonawanda, New York for the 2005-2006 school year, I forwarded a similar "FOIL" Request for Records, via certified mail/return receipt requested, to North Tonawanda City Attorney Shawn Nickerson, and as suggested by him. I again requested agency records within the possession and control of the City of North Tonawanda Police Department and to include papers, reports/incident reports, letters, films, photographs, and sound recordings related to all bomb threats occurring at North Tonawanda High School during the 2005-2006 school year. I also (again) requested all documents that describe or reflect the procedures followed by investigating officers on this matter, as well as a record of calls made to Emergency 911 response system and, if the call was transferred to the Fire Department or the Emergency Medical Service, a record of those calls as well.
On 20 December 2007, I received from City Attorney Shawn Nickerson's office, two (2) North Tonawanda Police Department NYS Incident Reports, one (1) City of North Tonawanda Department of Police Crime Scene Log, and three (3) North Tonawanda Police Department Incident Maintenance Logs, totaling eleven (11) pages, plus an Invoice (No. 1160) in the amount of $11.25, evidently representing the cost of copying (over $1.00 per page). A written response to the "FOIL" request for records was not enclosed as required by "FOIL" law and procedure to provide an explanation as to why parts of the request were denied (among other matters, evidence of photographs of the crime scene exist, yet were not provided and without explanation; nor was the name, address and email address of the person or body to whom an appeal can be directed provided).
On 21 December 2007, via certified mail/return receipt requested, I again directed correspondence to City Attorney Shawn Nickerson, pointing out the failure to comply with Freedom of Information Laws and requested a written response, consistent to and within the time prescribed by law, to "FOIL" Request for Records relating to all bomb threats occurring at City of North Tonawanda School District, North Tonawanda High School, during the 2005-2006 school year.
The Truths: On 17 December 2007, after a "No Reply" from North Tonawanda City Chief of Police Randy Szukala who defied NYS laws and procedures to "FOIL" Request for Records related to all bomb threats occurring at North Tonawanda High School, located at 405 Meadow Drive, North Tonawanda, New York for the 2005-2006 school year, I forwarded a similar "FOIL" Request for Records, via certified mail/return receipt requested, to North Tonawanda City Attorney Shawn Nickerson, and as suggested by him. I again requested agency records within the possession and control of the City of North Tonawanda Police Department and to include papers, reports/incident reports, letters, films, photographs, and sound recordings related to all bomb threats occurring at North Tonawanda High School during the 2005-2006 school year. I also (again) requested all documents that describe or reflect the procedures followed by investigating officers on this matter, as well as a record of calls made to Emergency 911 response system and, if the call was transferred to the Fire Department or the Emergency Medical Service, a record of those calls as well.
On 20 December 2007, I received from City Attorney Shawn Nickerson's office, two (2) North Tonawanda Police Department NYS Incident Reports, one (1) City of North Tonawanda Department of Police Crime Scene Log, and three (3) North Tonawanda Police Department Incident Maintenance Logs, totaling eleven (11) pages, plus an Invoice (No. 1160) in the amount of $11.25, evidently representing the cost of copying (over $1.00 per page). A written response to the "FOIL" request for records was not enclosed as required by "FOIL" law and procedure to provide an explanation as to why parts of the request were denied (among other matters, evidence of photographs of the crime scene exist, yet were not provided and without explanation; nor was the name, address and email address of the person or body to whom an appeal can be directed provided).
On 21 December 2007, via certified mail/return receipt requested, I again directed correspondence to City Attorney Shawn Nickerson, pointing out the failure to comply with Freedom of Information Laws and requested a written response, consistent to and within the time prescribed by law, to "FOIL" Request for Records relating to all bomb threats occurring at City of North Tonawanda School District, North Tonawanda High School, during the 2005-2006 school year.
Monday, December 17, 2007
"No Reply" from North Tonawanda Police Department Chief of Police Szukala to "FOIL" Request Related to Bomb Threats at NTHS 2005-2006 School Year
The Standards: The Freedom of Information Law ("FOIL") is a New York state law that establishes rights similar to the Freedom of Information-Privacy Acts ("FOIPA") enacted in 1966 to establish the publics' right to obtain information from federal government agencies. If you are requesting records from a federal government agency, you must file a request under the federal Freedom of Information-Privacy Acts ("FOIPA"). If you are requesting records from a state or local agency (i.e. your state or local police department), you must file a request under the Freedom of Information Law ("FOIL").
A "requester" can obtain "agency records", which has been broadly interpreted by the Courts to mean: all types of documentary information within the possession and control of the "agency", such as papers, reports, letters, films, photographs, and sound recordings; physical objects can not be recovered.
Although there are several exemptions under both the federal "FOIPA" law and New York state "FOIL" law, federal agencies are nevertheless required to respond within twenty (20) business days and state or local agencies are required to respond within five (5) business days after the receipt of the request to either make the requested records available to you, deny the request, or acknowledge the request and state an approximate date when your request will be granted or denied. An appeal can be filed with higher officials within the agency if the agency denies your request. The person or body to whom the appeal should be directed should be conveyed in the agency's response letter. If an appeal to a "higher official" is rejected, the requester can file suit in federal court for "FOIPA" requests and in state court for "FOIL" requests where the agency will bear the burden of justifying the denial of your request (www.dos.state.ny.us/foil2.html, www.nycosh.org and aclu.org).
The Truths: On December 6 2007, via Certified Mail/Return Receipt Requested, a "FOIL" Request for Records was made to City of North Tonawanda Police Department, Chief of Police and Records Access Officer, Randy D. Szukala. The "item" was delivered at 10:01 AM on December 7, 2007 and signed for by Maureen Balling. To date (17 December 2007), "No Reply" has been received from Chief Szukala to the "FOIL" Request for Records. The "FOIL" request included a request for agency records within the possession and control of the City of North Tonawanda Police Department to include papers, reports/incident reports, letters, films, photographs, and sound recordings, related to all bomb threats occurring at North Tonawanda High School, located at 405 Meadow Drive, North Tonawanda, New York during the 2005-2006 school year (September 2005 through June 30, 2006). A request was also made for all documents that describe or reflect the procedures followed by investigating officers on this matter, as well as a record of calls made to Emergency 911 response system and, if the call was transferred to the Fire Department or the Emergency Medical Service, a record of those calls as well.
A "No Reply" by Chief Szukala to the "FOIL" request within the time prescribed by law led me to telephone North Tonawanda City Attorney Shawn P. Nickerson who, this morning, indicated that I could direct the "FOIL" Request for Records to his attention.
A Freedom of Information-Privacy Acts ("FOIPA") Request for Records similar to the "FOIL" Request for Records to City of North Tonawanda Police Department Chief of Police and Records Access Officer Randy Szukala was also made to the U.S. Department of Justice, Federal Bureau of Investigations, who promptly and courteously replied well within the time prescribed by law, "No records responsive to your "FOIPA" request were located by a search of the automated indices."
A "requester" can obtain "agency records", which has been broadly interpreted by the Courts to mean: all types of documentary information within the possession and control of the "agency", such as papers, reports, letters, films, photographs, and sound recordings; physical objects can not be recovered.
Although there are several exemptions under both the federal "FOIPA" law and New York state "FOIL" law, federal agencies are nevertheless required to respond within twenty (20) business days and state or local agencies are required to respond within five (5) business days after the receipt of the request to either make the requested records available to you, deny the request, or acknowledge the request and state an approximate date when your request will be granted or denied. An appeal can be filed with higher officials within the agency if the agency denies your request. The person or body to whom the appeal should be directed should be conveyed in the agency's response letter. If an appeal to a "higher official" is rejected, the requester can file suit in federal court for "FOIPA" requests and in state court for "FOIL" requests where the agency will bear the burden of justifying the denial of your request (www.dos.state.ny.us/foil2.html, www.nycosh.org and aclu.org).
The Truths: On December 6 2007, via Certified Mail/Return Receipt Requested, a "FOIL" Request for Records was made to City of North Tonawanda Police Department, Chief of Police and Records Access Officer, Randy D. Szukala. The "item" was delivered at 10:01 AM on December 7, 2007 and signed for by Maureen Balling. To date (17 December 2007), "No Reply" has been received from Chief Szukala to the "FOIL" Request for Records. The "FOIL" request included a request for agency records within the possession and control of the City of North Tonawanda Police Department to include papers, reports/incident reports, letters, films, photographs, and sound recordings, related to all bomb threats occurring at North Tonawanda High School, located at 405 Meadow Drive, North Tonawanda, New York during the 2005-2006 school year (September 2005 through June 30, 2006). A request was also made for all documents that describe or reflect the procedures followed by investigating officers on this matter, as well as a record of calls made to Emergency 911 response system and, if the call was transferred to the Fire Department or the Emergency Medical Service, a record of those calls as well.
A "No Reply" by Chief Szukala to the "FOIL" request within the time prescribed by law led me to telephone North Tonawanda City Attorney Shawn P. Nickerson who, this morning, indicated that I could direct the "FOIL" Request for Records to his attention.
A Freedom of Information-Privacy Acts ("FOIPA") Request for Records similar to the "FOIL" Request for Records to City of North Tonawanda Police Department Chief of Police and Records Access Officer Randy Szukala was also made to the U.S. Department of Justice, Federal Bureau of Investigations, who promptly and courteously replied well within the time prescribed by law, "No records responsive to your "FOIPA" request were located by a search of the automated indices."
Saturday, December 1, 2007
State of New York Office of the State Comptroller Forwards Complaint Against North Tonawanda School District to Commissioner of Education Mills
The Standards: According to correspondence recently received from Associate Counsel Albert Wm. Brooks, State of New York Office of the State Comptroller, "the reporting of violent or disruptive incidents is required by section 2802 of the Education Law. Under this provision, school districts are required to report annually to the Department of Education (Department), in a form and by a date prescribed by the Commissioner of Education (Commissioner), information concerning violent and disruptive incidents that occurred in the prior school year. Section 100.2(gg) of the Commissioner's regulations (8NYCRR 100.2(gg)) defines the types of violent incidents that must be reported and the additional information that must be included in the annual report. The Department is required to assess the reported information and determine whether any schools should be designated as persistently dangerous because of their violent and disruptive incidents.
In accordance with section 305(1) of the Education Law, the Commissioner is charged with enforcing all general and special laws relating to the education system and with executing all educational policies of the Board of Regents. Further, section 306(1) of the Education Law authorizes the Commissioner to withhold from any district or city its share of public moneys for willfully disobeying any provision of law or any decision, order or regulation. Finally, the Commissioner is authorized by section 308 of the Education Law to institute any proceeding as may be necessary to properly enforce and give effect to any provision of the Education Law.
The Office of the State Comptroller has audited the Department's oversight of this incident reporting program, pursuant to its authority under the State Constitution and the State Finance Law. However, in accordance with the provisions of the Education Law cited above, the Department of Education would have the authority to initiate such other action as might be appropriate upon a determination that the information provided by a particular school district in its annual reporting was inaccurate or otherwise deficient. Accordingly, we are forwarding your complaint to the Commissioner of Education."
In accordance with section 305(1) of the Education Law, the Commissioner is charged with enforcing all general and special laws relating to the education system and with executing all educational policies of the Board of Regents. Further, section 306(1) of the Education Law authorizes the Commissioner to withhold from any district or city its share of public moneys for willfully disobeying any provision of law or any decision, order or regulation. Finally, the Commissioner is authorized by section 308 of the Education Law to institute any proceeding as may be necessary to properly enforce and give effect to any provision of the Education Law.
The Office of the State Comptroller has audited the Department's oversight of this incident reporting program, pursuant to its authority under the State Constitution and the State Finance Law. However, in accordance with the provisions of the Education Law cited above, the Department of Education would have the authority to initiate such other action as might be appropriate upon a determination that the information provided by a particular school district in its annual reporting was inaccurate or otherwise deficient. Accordingly, we are forwarding your complaint to the Commissioner of Education."
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