Lawyers Claim the Law Is Ignored

    Attorneys for a Montauk mechanic who is suing the Town of East Hampton in federal court claim the town has withheld key documents that could affect the outcome of the case.

    Thomas Horn, a former East Hampton Town fire marshal, and Lawrence Kelly, a former State Department attorney, are representing Thomas Ferreira, whose repair shop they allege was improperly targeted beginning in 2008 and whose tools, cars, and car parts were confiscated the following year.

    Mr. Ferreira’s lawyers contend that town officials have failed to respond to

dozens of requests for documents under the New York State Freedom of Information Law, and say some of their requests date back more than two years.

    Mr. Ferreira’s attorneys are not alone in criticizing the town’s responses to FOIL requests. Among others are Donald Torr, the former owner of the Crow’s Nest restaurant in Montauk, and David Buda of Springs, a consistent monitor of town affairs.

    As set out in the law, all requests must be acknowledged in writing within five days, and a municipality must also keep a running log that details the progress in gathering the information. The law provides for certain exemptions, and for an appeals process should a FOIL request be denied. East Hampton Town Clerk Fred Overton is the FOIL manager for the town, and Supervisor Bill Wilkinson is the appeals officer. On Friday, Mr. Overton said the system seemed to be working well. Supervisor Wilkinson said he had not personally seen any freedom of information requests from Mr. Ferreira’s representatives.

     “I usually send requests to the specific departments. If it’s a legal matter it goes to the town attorney, if code enforcement it goes to the Ordinance Department,” Mr. Overton said. John Jilnicki, the town attorney, manages FOIL

requests that come into his department and determines whether the information requested is exempted from disclosure.

    “I keep a record of all requests. Most departments will fill the request and send the information to me. I call the people. The law says we have to respond in five days, but if it’s a legitimate delay I think we have 20 days,” the town clerk said. Mr. Overton said he reviews FOIL files once a week and if requests have not been met he calls the department involved to find out why. He said his office had received over 270 FOIL requests so far this year, and, he added, “There are not a lot of complaints.” 

    According Mr. Horn, the original FOIL request in the Ferreira matter was made in February of 2010. It was prompted, he said, by the lack of a warrant during a raid on Mr. Ferreira’s Automotive Solutions business, at 63 Navy Road. To the attorneys, this indicated the possible existence of a conspiracy to remove the business from the shore of Fort Pond Bay without due process. Mr. Horn said certification by the Ordinance Enforcement Department is required before property may be seized. A certification document was among those unsuccessfully requested.

    Communications among officials on the day of the raid were also sought. A request for a transcript of a taped meeting of the Montauk Citizens Advisory  Committee was ignored, he said. The attorneys wanted it in order to show that a member of that committee had said she was working closely with the town attorney’s office on attempts to clean up the Ferreira property.  

    Mr. Horn and Mr. Kelly claim that two documents obtained outside the FOIL process, and at great expense to their client, had prompted their FOIL requests.The first was a report by James Dunlop, a town fire marshal, dated June 17, 2009, in which he stated he had found no dangerous stored fuels on the Ferreira property, which had been asserted in summonses. The second document was a report given to the town board and copied to the attorney’s office by Kenneth Glogg, an enforcement inspector. It contradicts the fire marshal’s subsequent report and warns of a serious danger to public health and safety. The latter document was shown to town board members before they voted for the raid. But, the attorneys say, Mr. Dunlop’s  report was not shared with the board. 

    The attorneys did obtain a memo from Madeleine Narvilis, an assistant town attorney at the time, through a FOIL request. They say it instructs Michael Johnson, chief fire marshal, to rewrite Mr. Dunlop’s report using language that justified the raid. Mr. Kelly said receipt of the memo was “a singular exception to the town’s overall policy of ignoring FOIL requests.”

    Mr. Overton’s picture of a well-oiled machine does not square with the experience of a number of people interviewed, in addition to Mr. Ferriera’s attorneys. However, the general impression seemed to be that the hang-ups were not necessarily found in the town clerk’s office.

    Donald Torr, former owner of the Crow’s Nest Restaurant in Montauk, said it was six months after filing a FOIL request related to the town’s dealings with the restaurant before he got the documents he sought. He said he had to call several times before he got a verbal, not written, acknowledgement that Mr. Overton had received the request.

    “I had to keep after them. I was told it got filed away, lost, the same excuses. I made three or four personal appearances looking for someone to talk to,” the former restaurateur said, adding that he was told his request had been sent to Mr. Jilnicki and that Mr. Jilnicki would forward the material to the town clerk. “The clerk said he didn’t see it, so I called Jilnicki and he said he didn’t know where it went.”

    David Buda, a Springs resident, is a consistent monitor of local government. “I’ve had some successes and some failures. The deputy clerk, Carol

Brennan, has on occasion expedited service including e-mailing documents almost immediately. But, I’ve had one request totally ignored that was directed from the town board through Fred [Overton].”

    Mr. Buda said that he had submitted a formal FOIL request in early May for a copy of a letter discussed at a town board meeting. On June 6, he said, he followed up with an e-mail to Mr. Overton with a copy of the request. “To this day there has been no response. If they’d said it was rejected, okay, but no

response,” he said. He added that he had made two other unanswered requests that went from the town clerk’s office into “the black hole of the attorney’s office.”

    On the other hand, Mr. Buda had high praise for the “expedited” service in the office of the Ordinance Enforcement Department. “They’re on top of things,” he said. But, he added, when documents are “in the possession of the town clerk, the response is efficient.”

    The East Hampton Star has used the Freedom of Information Law to seek information on numerous occasions with varying degrees of response and often with delays exceeding the deadlines set out by the law.

    Last summer, a request was made for a required “subject list” of records that

the Freedom of Information Law says all agencies must keep. Apparently, no department produced such lists, and Mr. Overton did not respond within the required five days nor after e-mailed reminders. The Star never received a formal response.