Written by Port Washington News Editorial Staff Thursday, 16 January 2014 00:00
The Mineola Village Board last week denied parts of resident and former trustee Larry Werther’s appeal of his Freedom of Information Law (FOIL) request. He filed a request asking for all documents pertaining to the recent Bolla Market public hearings, including board correspondence with Village Attorney John Spellman, communications between Spellman and Bolla’s attorney John Altman and intra-board communications—all of which are not FOILable, according to the board.
However, documents in Werther’s request that contained talks with Spellman, Altman and Getty are available but have not been picked up, which leaves Werther, or taxpayers, on the hook for $64.50. There are more than 258 documents, according to village
Citing Robert Freeman, executive director of the New York State Committee on Open Government, Mayor Scott Strauss read in the appeal decision a quote from Freeman describing the attorney/client privilege.
“For more than a century, the courts have found that legal advice given by a municipal attorney to his or her clients....is privileged when it is prepared in conjunction with an attorney-client relationship,” said Freeman.
At a Nov. 13 public hearing, Werther requested copies of documents regarding Bolla, including letters, emails and text messages, etc. of all involved parties. In a letter dated Nov. 22, Village Clerk Joseph Scalero, who also serves as Mineola’s FOIL officer, said there was no correspondence available that pertained to board member communications but they are not FOILable anyway, because it “constitutes intra-agency communications.”
“[My FOIL] would prove exactly what happened...they approved it,” Werther said. “They put minimal protection on the village. They cut out a five-hour window where he can’t operate, where he’ll probably be least profitable.”
Werther argued in his appeal that any communications are FOILable between board members if deliberations leading to a vote is discussed. Citing state law, Werther said he’s not asking Spellman to disclose info he sent the board, but rather the village itself.
“The hallmark of this administration is to do everything in the back room,” Werther said in a phone interview. “Just like when I got a call from a couple of people when the Bolla decision came down. It would have been nice to let people come down and say it to their faces, rather than just spring it on them.”
Reading the appeal decision, Strauss said that, “Mr. Werther is apparently asserting that denial of copies of correspondence between board members and the village attorney based on attorney/client privilege is illegal.” Furthermore, Werther changed his request, asking for information flowing to Spellman, but not from him.
“Attorney/client privilege prevents your attorney from rolling on you,” Werther said. “So, it may be protected, but to claim that is specious. It muzzles the attorney. It doesn’t muzzle the village.”
Strauss said Werther misquoted the law and took issue with calling Scalero’s response “disingenuous and specious at best.”
“The Incorporated Village of Mineola takes very seriously its obligations under the Freedom of Information Law,” Strauss said. “Every effort is made to comply with the legal requirements of FOIL. Very often, as it was in this matter, this compliance requires significant work hours on part of the village staff and its officers in order to produce what citizens are entitled to see under law.”