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One Example of Many as to Why New Rochelle City Clerk Bennie Giles Must Be Sent to Remedial Freedom of Information Law Training

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One Example of Many as to Why New Rochelle City Clerk Bennie Giles Must Be Sent to Remedial Freedom of Information Law Training

December 21, 2010 - 20:14

The following is a part of what I was put through by New Rochelle City Clerk Bennie Giles in obtaining what turned out to be 3 pages of records from the Parks & Recreation Department. I believe it provides a good example of why it should be required of anyone working in the City Clerk's office including the Clerk themselves. It is clear that Giles does not understand the Freedom of Information Law. The law is too important to be in the hands of someone who does not understand it so this needs to be fixed. Going forward, the City Council ought to make it a requirement that the City Clerk have a demonstrated understanding of the New York State Freedom of Information Law and the New York State Open Meeting Law.

I first contacted Bennie Giles on June 3, 2010 after visiting Ward Acres Community Garden and noticing there was an ongoing fundraising effort to pay for installing a water system at the location.

from Robert Cox
to "Giles, Bennie"
date Thu, Jun 3, 2010 at 12:54 PM
subject Public Records Request - Ward Acres Community Garden

This is a public records request.

I would like to inspect all files and folders related to the Ward Acres Community Garden (WACG) including but not exclusively all application forms filed with the City of New Rochelle since the inception of the program, all communications between the City of New Rochelle and the WACG Steering Committee and any agreements with third parties including H.O.P.E. Community Services Soup Kitchen, Habitat for Humanity, Bulfamonte Nurseries, Westchester County and other organization.

Where possible I would like records in electronic format. If possible, I would like the electronic documents converted into standard Microsoft Office format (Word, Excel, etc.). I would like all communications including the delivery of documents to take place via email as much as is possible based on the nature of the available records.. I would like the Records Access Officer to certify that the records are genuine. If the documents only exist in paper form I am willing to pay. If the cost of converting the documents to a standard electronic format or making photos copies exceeds $20.00 I would like prior notification of the estimated cost to comply with this records request.

Thank you,

Robert Cox
Managing Editor
New Rochelle's Talk of the Sound

Under FOIL, the Records Access Officer for the Agency (i.e, the City Clerk in the case of the City of New Rochelle which is to say, Bennie Giles), must confirm receipt of the request in writing (if sent by email then by email) within 5 days and make a decision whether to grant or deny a request within 22 days and if denying a request in whole or in part explain why in writing and offer the right to appeal the decision. Instead I heard nothing at all. So, a few weeks later I wrote again.

from Robert Cox
to "Giles, Bennie"
date Thu, Jul 1, 2010 at 1:50 PM
subject Ward Acres...

Bennie,

...Any progress on the Ward Acres Garden FOIL request? I was told the other day that Bill Zimmerman had some sort of meeting with the people involved and he mentioned there has been a FOIL request. I figure he was referring to me. In the past I not found Bill to be terribly enamored with the idea of getting FOIL requests from me. Does he have some hesitation about my request?

Hope all is well!

Bob Cox

Robert Cox
Managing Editor
New Rochelle's Talk of the Sound

from Giles, Bennie
to Robert Cox
date Thu, Jul 1, 2010 at 4:21 PM
subject REsponse: Ward Acres

Hi Bob,

... Yes, I do have your information on Ward Acres. Bill’s staff sent it to me and I have sat on it, forgive me. I will put it together this evening and send you an email on how many pages, etc.

Again, Bob, I apologize for my delay.

Take care, and enjoy the day.

Bennie F. Giles, III
City Clerk, New Rochelle, NY

So Bennie has obtained the records I requested, apparently shortly after my request, and has been sitting on them since June, 2010. Three weeks later, still no reply and so another email.

From: Robert Cox
Sent: Thursday, July 22, 2010 5:52 PM
To: Giles, Bennie
Subject: outstanding FOIL requests

Bennie,

You have several FOIL requests outstanding from me for which I have never received any formal acknowledgement and which I never got. At some point I have to make an issue out of not getting response.

Can you please have everything ready for me tomorrow so I can come by and access the records?

Thanks

Robert Cox
Managing Editor
New Rochelle's Talk of the Sound

It is now six weeks since I have made my request -- the 22 day deadline has long since passed. He has the documents for about a month, sitting on them, and now he decides that there is a privacy issue. He can give me some of the records but not all. In speaking to him in person he says that people who obtained permits for plots in the Ward Acres Community Garden have an expectation of privacy. He says he needs to redact the names of the permit holders. Despite this he asks me to come by to review the documents.

from Giles, Bennie
to Robert Cox
date Mon, Jul 26, 2010 at 4:54 PM
subject REsponse: outstanding FOIL requests

Good afternoon Bob,

I have information on the Ward Acres Community Garden. The information is not electronic format and consists of several pages with twelve (12) pages being the presentation. Some of the information is of a person nature and would be an invasion of privacy [87 (2)(b) which I cannot provide.

Please let me know when you would like to come in to view the information I have and determine which of it you may want copies.
Take care, and enjoy the day.

Bennie F. Giles, III
City Clerk, New Rochelle, NY

from Robert Cox
to "Giles, Bennie"
date Mon, Jul 26, 2010 at 6:58 PM
subject Re: REsponse: outstanding FOIL requests

Bennie,

I have several appointments tomorrow so maybe it is best to set a time on Wednesday.

What is a good time for you on Wednesday?

Bob Cox

from Giles, Bennie
to Robert Cox
date Tue, Jul 27, 2010 at 9:23 AM
subject RE: REsponse: outstanding FOIL requests

Good morning Bob,

Early in the morning would be best. I will be leaving the office around 11 or 11:30. Also, you may need to refresh my memory on your requests; I do get lost with all of the email coming in including the FOIL requests.

Let me know what time is good tomorrow.

Take care, and enjoy the day.

Bennie F. Giles, III
City Clerk, New Rochelle, NY

When I went to City Hall, Giles would not let me look at the records for Ward Community Garden or anything else. He said he was not quite ready and needed more time. He did give me a a paper print out of a PowerPoint presentation about the Ward Community Garden program calling it his "gift" to me since he was not charging me for the copies. I pointed out that this was not part of my FOIL request but even if it was it was clearly a print out of an existing electronic document and as such should have been emailed to me as an attachment at no charge. The agency may not charge for electronic records unless assembling them takes more than two hours which was not the case here.

Another month went by and still no records. While in City Hall the week a few days before the Labor Day weekend Bennie saw me in the building, came over to me and told me that he would have all the records together in "two weeks" and that I should come see him the Friday after Labor Day (September 10, 2010). He asked me I could provide a complete list of all outstanding FOIL requests which I did on August 30th.

Robert Cox
to "Giles, Bennie"
date Mon, Aug 30, 2010 at 3:56 PM
subject Catch Up on FOIL Requests

Mr. Giles,

Per our discussion last week, I have reviewed all outstanding FOIL request going back to 9/1/08. I have a series of additional FOIL requests I intend to make but wanted to clarify requests made previously and are not yet closed.

Outstanding FOIL Requests

6/9/2010 A letter or other communication from Entertainment Property Trust sent to the City of New Rochelle or a related agency (IDA, Zoning, Planning, City Council) regarding the recent change of management at New Roc City. City of New Rochelle Development Bennie Giles

6/10/2010 Ward Acres Community Garden City of New Rochelle Parks & Recreation Bennie Giles

7/12/10 Docs on civil service tests City of New Rochelle Civil Service Bennie Giles

8/12/2010 a document that explains the City's position on the process of a special election as it pertains to the District 3 seat. City of New Rochelle Civil Service Bennie Giles

8/12/2010 Employee List with title, salary, time of hire, OT, etc City of New Rochelle Civil Service Bennie Giles

From before your time, I have two others:

12/8/2009 Hybrid Electric Garbage Truck City of New Rochelle Department of Public Works Rita Colangelo

In this case, I was given access to a DPW folder by Jeff Coleman but not the information I sought regarding the cost to acquire, convert, maintain the building to establish a "true cost" of the vehicle.

11/1/08 Lightening Strike at NRHS Aug 2008 City of New Rochelle NRFD

In this case, I did not get a great deal of cooperation from your predecessor and then she passed away so I had dropped it but I will want a copy of the NRDF incident report from the lightening strike at New Rochelle High School in August 2008.

When I spoke with Bennie a few days later he again brought up the privacy issues with the Ward Acres Community Garden permit holders and that he needs to redact the names. Just to be clear, this means making copies of the documents and drawing a line through the names. I later learn that this list is about 50 names on 2 pages. Ask yourself how long it takes to cross out 50 names with a magic marker? This was three months after my original request and two months after he told me he had the records ready for me to pick up. I told him that I did not agree that there was an expectation of privacy with permit holders but that as a matter of law, he needed to formally deny my request in part and provide me the redacted list so that I can then appeal his denial to the head of the agency (City Manager Chuck Strome).

I put this in writing a few days later.

from Robert Cox
to "Giles, Bennie"
date Tue, Sep 7, 2010 at 5:17 PM
subject FOIL REQUEST: Ward Acres Community Garden

Mr. Giles,

Last week you informed me that there were "privacy" issues related to providing the records I requested for the Ward Acres Community Garden. I am not clear why you believe that filing for a permit to lease public land creates an expectation of privacy or what basis the City would make a legal argument to that end but I do not agree.

In order to follow the correct process, I need you to deny in writing whatever parts of my request where you believe the privacy argument holds so that I can then appeal that decision to the head of the agency (i.e. Chuck).

Thank you,

Robert Cox
Managing Editor
New Rochelle's Talk of the Sound

From: Robert Cox
Sent: Monday, September 13, 2010 11:44 AM
To: Giles, Bennie
Subject: FOIL FRIDAY has come and gone.

Bennie,

Per your request two weeks ago, I was willing to wait an additional two weeks on the outstanding FOIL requests but at the point I have to file an appeal with Chuck of what amounts to a constructive denial of my request for the outstanding FOIL requests you had promised to deliver last Friday. Some of these requests go back 2-3 months without a formal denial or approval (one goes back to 2008) so I think you would agree that I have been quite patient.

Going forward I need to make sure I have all my ducks in a row. Making informal agreements to give you more time to comply with FOIL requests is not working for me. I am sure you realize if I do not follow the law then it sets the stage for denying any appeals on those grounds and I wish to avoid that as I am sure you do too so I will be sticking to the letter of the law going forward and filing appeals immediately upon hitting the various trigger points. That will begin this week with regard to the FOIL request I filed last week.

Given Chuck's refusal to respond to requests for information and to add me to the press list I will likely be running stories about constructively denied FOIL requests from time to time. It is nothing personal -- I like you -- but hope you will appreciate my situation.

Thanks so much,

Robert Cox
Managing Editor
New Rochelle's Talk of the Sound

from Giles, Bennie
to Robert Cox
cc "Gill, Kathleen"
"Strome, Chuck"
date Mon, Sep 13, 2010 at 4:50 PM
subject REsponse: FOIL FRIDAY has come and gone.

Good afternoon Mr. Cox,

First may I say that I have not denied any of your FOIL Requests. I do apologize for taking quite awhile to get back to you.

Ø The 6/9/2010 request concerning Entertainment Property Trust letter, I will get whatever information exists from the departments and report back to you.

Ø The 6/9/2010 request concerning the Ward Acres Community Garden. I gave you information which was provided by the Parks and Recreation Department on that request. Some your request was for individuals’ personal information and could not be given.

Ø The 7/10/2010 request for documents on civil service tests is too vague; you need to be more specific in order for me to help you.

Ø The 8/12/2010 request for a document that explains the City’s position on the process for a special election as it pertains to the Council District 3 seat. There is no formal document on the City position on this special election. The process is set by the Election Law and the Westchester County Board of Elections.

Ø The 8/12/2010 request for an employee list with title, salary, time of hire, OT, etc. of New Rochelle civil service. Again, this request is vague and too broad for a meaningful response.

Ø The 12.8/2009 request on the Hybrid Electric Garbage truck. I will look back at the records to see what information you were given and respond to you once I research our FOIL files.

Ø The 11.1/2009 request on the lightening strike at NRHS on August, 2008. Again, I am not sure what information you were given and I will look back in our FOIL records and get back to you.

Once again Mr. Cox, I do apologize for the delay and will answer you FOIL requests as soon as I can.

Take care, and enjoy the day.

Bennie F. Giles, III
City Clerk, New Rochelle, NY

When Giles writes "I gave you information which was provided by the Parks and Recreation Department on that request. Some your request was for individuals’ personal information and could not be given." What he means that he gave me the PowerPoint presentation about the Ward Community Garden program which was not part of my request and should have been emailed to me at no charge if it was.

Robert Cox
to "Giles, Bennie"
date Mon, Sep 13, 2010 at 5:48 PM
subject Re: REsponse: FOIL FRIDAY has come and gone.

Bennie,

More than two weeks ago you told me I was getting all of the records I requested weeks and months ago and would have them by last Friday. Now you are giving me a wide variety of explanations as to why I have still not gotten any records ranging from spurious claims that my requests are "too vague" or admissions that you have not even sought to obtain the records from the appropriate departments. Your reply today does not in any way comport with your previous statements and brings in doubt your sincerity regarding your previous promises to comply with my requests.

I am using the term "constructive denial" because that is the appropriate term. If you are not familiar with the term check with Kathy Gill.

I am not going to respond here to each of your responses below because quite frankly they are silly but to take the first one, you have had three months to get a copy of the documents between EPT and the City of New Rochelle, you once again promised in August that I would have it by last Friday and now you are saying that you have not even requested the information the IDA and/or Development department and/or Legal department. That's what I mean by your reply being "silly".

Regarding Ward Acres, I asked you for records of who applied for permits and such; you showed me a folder but said I could not see the information because of a supposed privacy issue. Instead you gave me a paper print out of a PowerPoint presentation. I said in person that I would still want the documents even if you redacted them and then sent an email asking that you formally state your position so that I could appeal the privacy claim. You neither provided the redacted documents or denied my request. Hence, this is a "constructive denial" of my request.

My civil service request is not vague at all but regardless it was made two months ago and only now are you telling me that my request is vague.

The list of employees request is a STANDARD request under FOIL that is routinely made and hardly vague. The Journal News publishes this list annually. My request is for the same information -- typically provided in a spreadsheet.

I am going to just go ahead and file my appeals starting tomorrow. If you are able to produce records I want in the mean time I will happily withdraw them but I trust you understand why I have no choice but to make a public issue of this by copying the New York State Committee on Open Government, members of the City Council and publishing all of this on my site.

Be advised, that going forward, I will file appeals upon the passing of 5 days without a formal confirmation of your receiving my request and upon either a formal denial of a request or upon the passing of the statutory time limits.

Quite frankly, I am very disappointed in your behavior and fear that perhaps I misjudged you.

Thanks

Robert Cox
Managing Editor
New Rochelle's Talk of the Sound

More weeks went by with more and more excuses but still no records from Ward Acres Community Garden. On the day of the Thanksgiving Day Parade Giles approached me on the street and said I should take him to lunch to discuss my FOIL requests. I responded that while I would be willing to go to lunch it had nothing to do with my records requests. I did not hear from him after this and so wrote to him on November 30.

Robert Cox
to "Giles, Bennie"
cc "Strome, Chuck",
"Gill, Kathleen"
date Tue, Nov 30, 2010 at 11:33 AM
subject FOIL docs and lunch

Bennie,

On 11/20 you said you had a "whole stack of documents" for me. I have heard this sort of thing from you so many times over the past several months it makes my head spin and I am tired of it. You have made such claims in the past and then not delivered and I have no reason to believe you now. Ten days have gone by and I have still not heard back from you (again).

Let me remind you (again), as City Clerk, you are REQUIRED BY LAW to give me formal notification of your decision to grant or deny, in whole or in part, specific public record requests. By law, you have to respond to individual requests and do so in the manner in which they were received (ie. email when the request is made by email). This means you are required to send me an email with a decision on EACH REQUEST not chat me up on the sidewalk after a parade. You are not allowed to use the excuse that you do not have the resources to get the records to delay providing the records. If there is some reasonable cause for a delay you must explain that IN WRITING and give a date when you will make a decision on granting or denying a request.

I ask once again that you bring your office into compliance with state law and give me formal notice(s) of which specific requests your are granting and denying and explaining my right to appeal any particular denials.

If it helps, here is a link to a cover letter from the Department of Justice granting, in part, access to records from the ATF and FBI regarding the car explosion on Union Avenue in April. Perhaps you can use some of the language from their letter.

http://www.newrochelletalk.com/files/FOIL_ATF-FBI_UnionAve_CarExplosion.pdf

Another good link is here: http://www.dos.state.ny.us/coog/index.html

I am sure Ms. Gill can offer some assistance in setting up form letters you can use.

If you still want me to take you to lunch, fine. But our having lunch and your affirmative obligation to provide timely access to public records have nothing to do with each other. Just to be super clear, no agreement or accommodation exists between us. I do not want favors or chats or lunches or handshakes. I want the records.

Sincerely,

Robert Cox
Managing Editor

from Giles, Bennie
to Robert Cox
cc "Strome, Chuck"
"Gill, Kathleen"
date Tue, Nov 30, 2010 at 12:18 PM
subject REsponse: FOIL docs and lunch

Mr. Cox,

I have retrieved from our archives 67 pages of documents, 2 brochures and one newspaper article for the public notice. Photocopies of the 67 pages are at the statutory rate of twenty-five cents each for a total of $16.75 payable to City Clerk’s Office. If you chose not to receive these documents; but rather review them, please email or call to make arrangements for a convenient time.

Take care, and enjoy the day.

Bennie F. Giles, III
City Clerk, New Rochelle, NY

from Robert Cox
to "Giles, Bennie"
cc "Strome, Chuck"
Kathy Gilwit
date Tue, Nov 30, 2010 at 12:38 PM
subject Re: REsponse: FOIL docs and lunch

Bennie,

This is still not proper notice. It is not even close.

You are required to make direct response to specific requests not just tell me you have a stack of papers and an invoice. I want to know, for each request, what you are granting or denying or denying in part. You seem to have the idea that you can just throw paper at me and then leave it to me to figure out what I have received.

You asked me to do this one other time with the records from the hybrid garbage truck. You refused to allow me to review the material before accepting it and I ended up paying $27.00 for a bunch of records I already had and not getting any of the invoices I had requested (and have still not gotten to this day).

Having been ripped off once I think I will just insist you follow the letter of the law and respond properly. Please seek counsel if your obligations under the law remain unclear.

Sincerely.

Bob Cox

Robert Cox
Managing Editor
New Rochelle's Talk of the Sound

Soon after this email, Chuck Strome contacted me and informed me that Kathy Gilwit would, on his behalf, obtain and deliver to me the records I had been seeking for months and even years. He noted that in reviewing the list he was surprised that there had been any issue of getting me the records as they appeared to be standard sorts of requests and would get them to me in short order which, for the most part, he did. There are still a few documents missing -- like the invoices for the hybrid garbage truck -- but they are working on those.

So after all of the emails, phone calls and meetings, after months of delays, after flagrant and routine violations of New York State law, I can now publish, without redaction, a portion of the records I wanted...six months after I first requested them. Again, by law the records have to be provided within 22 business days after confirming receipt or about a month at the most.

Ward Acres Community Gardens List

As can be seen this is a list of permit holders for the plots at the Ward Acres Community Gardens. Recall that Giles had this list since June 2010 and illegally withheld the record for almost six months. After two months of not turning over the records he asserted that for privacy reasons he would have to redact the records but then never did turn over the records -- redacted or otherwise.

Now, take a look at these photos from the Ward Acres Community Garden taken in June 2010, at the time of my request. Can you see any reason that Giles' claim of privacy concerns might be suspect?

See the Community Bulletin Board?

wardbulletin-wide.jpg

Look a little closer...

wardbulletin.jpg

Closer...

wardgardenlist-tight.jpg

Click here to zoom in on the image.

As you can see the names of the permit holders is not only not private, not only there is no expectation of privacy but the City of New Rochelle Parks & Recreation Department itself posted a list of all of the names of all of the permit holders for every permitted plot.

This begs the question how it could be that Bennie Giles determined that information provided to him by Bill Zimmerman's department which was already publicly posted at the time of my request was exempt under the Freedom of Information Law due to "privacy" concerns.

I am going to suggest a reason. Tell me what you think.

Bennie Giles, a political appointee who serves at the pleasure of the City Council (i.e. Mayor Noam Bramson), was instructed to slow walk or otherwise impede all of my FOIL requests as the Mayor's way of attempting to undermine the efforts of Talk of the Sound to function. The Mayor does not like me or this site and was especially unhappy at the time Giles was "sitting on" my request -- Talk of the Sound caught the Mayor red-handed trying to sneak a home-rule bill through the New York State legislature to pave the way for the Mayor to see that the New Rochelle Naval Armory was torn down while he was in the midst of discussions with proponents of saving the armory. The Mayor was particularly unhappy with the headline and the photo.

tora-tora-tora.jpg

The Mayor is on the record as an opponent government. This little game with the City Clerk and FOIL suits him to a tee. I do not believe that Giles has the wit or vindictiveness required to even consider gaming the Freedom of Information Law. This sort of undemocratic, secretive, sneaky, underhanded subversion of State law for his own gain smacks of being a Noam Bramson Production all the way.

While they played their little game, I preserved, demanding my right to public records, documenting their behavior at every turn, patiently waiting for my turn. Well, now it's my turn. And now the world can see the sort of perversion of democratic principles that goes on here in New Rochelle.

I am happy to say that Chuck Strome and Kathy Gilwit have been as good as their word while Bennie and the Mayor show there is no level to which they will not stoop to prevent the residents of New Rochelle from being informed citizens.