[HISTORY: Adopted by the Town Board of the Town of Amherst 4-7-2003 by L.L. No.
3-2003. Amendments noted where applicable.]
The title of this chapter shall be the "Local Law Implementing
the New York State Freedom of Information Law (FOIL) in the Town of
Amherst, New York."
The purpose of this chapter is to implement the New York State
Freedom of Information Law (FOIL) in the Town of Amherst.
A.
The Amherst Town Board hereby finds that Town government best serves
the interests of its citizens when it is responsive and responsible
to the public, and makes the public aware of government actions. The
more open a government is with its citizens, the greater the understanding
and participation of the public in government.
B.
As Town government services increase and public problems become more
sophisticated and complex, it is incumbent on the Town to extend public
accountability wherever and whenever feasible.
C.
The people's right to know the process of government decision-making
and to have access to the records leading to determinations is basic
to the good and proper operation of Town government.
D.
The Town Board declares that Town government is the public's
business and that the public, individually, and collectively represented
by a free news media, should have unimpaired access to records of
Town government as set forth herein.
E.
The Town of Amherst will comply fully with the provisions of the
New York State Freedom of Information Law of 1974, as amended by Chapter
933(3) of the Laws of 1977, and will seek to protect and promote the
public's right of access to Town government records.
The authority of Article IX of the New York Constitution (home
rule) and Municipal Home Rule Law § 10(1)(ii)(d)(3) (supersession
authority) is hereby invoked. Pursuant to this authority, other laws
are specifically superseded by this chapter to the extent they vary
or conflict with the provisions of this chapter.
As used in this chapter, the following terms shall have the
meanings indicated:
The Town Board or any Town department, board, bureau, division,
commission, committee, public authority, public corporation, council,
office or other governmental entity performing a governmental or proprietary
function for the Town of Amherst.
Any information kept, held, filed, produced or reproduced
by, with or for any Town of Amherst agency in any physical form whatsoever
including, but not limited to, reports, statements, examinations,
memoranda, opinions, designs, drawings, maps, photos, letters, microfilms,
computer tapes or discs, rules, regulations or codes.
The Town Clerk and any person or persons designated by the
head of a Town agency or department, indicating the name or specific
job title and business address of said person or persons, who shall
have the duty of coordinating the agency response to public requests
for access to records. The Agency Record Access Officer shall respond
to FOIL requests for citizen committees or other bodies when dealing
with issues within the jurisdiction of such agency or department.
[Amended 6-4-2018 by L.L.
No. 14-2018]
The Director of Human Resources shall compile an itemized record setting forth the name, public office address, title and salary of every officer or employee of each Town agency. Such records shall be made available for inspection to any person upon submission of written notice. The records may be inspected or copied under the supervision of a designated employee of the Human Resources Department in the departmental offices during regular working hours on regular working days or at such other place as may be convenient to the Director of Human Resources. However, nothing herein shall be construed to require the disclosure of the name of any Town officer or employee, if such information would be otherwise exempt from disclosure under § 22-9 hereof.
Each agency head shall maintain and shall make available for
public inspection and copying through a designated representative,
in conformity with such regulations as may be issued by the New York
State Committee on Open Government, a reasonably detailed current
list by subject matter of all records in its possession, whether or
not the records are available under this chapter or § 87,
Subdivision 2, of the Public Officers Law. The subject matter list
shall be sufficiently detailed to permit identification of the category
of the record sought. This list shall be known as the "departmental
records list" of each agency. A copy of the list shall be filed with
the Town Clerk. The list is to be updated semiannually, and the date
of the most recent updating shall appear on the first page of the
list.
A.
Each agency, in accordance with the procedures set forth in this
chapter, in addition to records it may be required to maintain and
make available pursuant to any other law, shall maintain and make
available for public inspection and copying all records, except that
such agency may deny access to records or portions thereof that:
(1)
Are specifically exempted from disclosure by state or federal statute;
(2)
If disclosed would constitute an unwarranted invasion of personal privacy under the provisions of § 22-9B of this chapter;
(3)
If disclosed would impair present or imminent contract awards or
collective bargaining negotiations;
(4)
Are trade secrets or are maintained for the regulation of commercial
enterprise which, if disclosed, would cause substantial injury to
the competitive position of the subject enterprise;
(5)
Are compiled for law enforcement purposes and which, if disclosed,
would:
(a)
Interfere with law enforcement investigations or judicial proceedings;
(b)
Deprive a person of a right to a fair trial or impartial adjudication;
(c)
Identify a confidential source or disclose confidential information
relating to a criminal investigation; or
(d)
Reveal criminal investigative techniques or procedures, except
routine techniques and procedures.
(6)
If disclosed would endanger the life or safety of any person;
(8)
Are examination questions or answers which are requested prior to
the final administration of such questions.
A.
To prevent an unwarranted invasion of personal privacy, each agency
will observe guidelines for the deletion of identifying details from
specified records promulgated by the New York State Committee on Open
Government. In the absence of such guidelines, an agency may delete
identifying details when it makes records available.
B.
An unwarranted invasion of personal privacy includes, but shall not
be limited to:
(1)
Disclosure of employment, medical or credit histories or personal
references of applicants for employment;
(2)
Disclosure of items involving the medical or personal records of
a client or patient in a medical facility;
(3)
Disclosure of lists of names and addresses if such lists would be
used for commercial or fund-raising purposes;
(4)
Disclosure of information of a personal nature when disclosure would
result in economic or personal hardship to the subject party and such
information is not relevant to the work of the agency requesting or
maintaining it; or
(5)
Disclosure of information of a personal nature reported in confidence
to an agency and not relevant to the ordinary work of such agency.
Procedure for the examination and copying of records will be
in conformity with such regulations as may be issued by the New York
State Committee on Open Government, but in the absence of a regulation
relating to a specific procedure by that body, the following regulations
shall prevail:
A.
The head of each Town agency or the governing body of such agency
shall be responsible for ensuring compliance with the regulations
herein, and shall designate one or more persons as Records Access
Officer by name or by specific job title and business address, who
shall have the duty of coordinating agency response to public requests
for access to records. The designation of one or more Records Access
Officers shall not be construed to prohibit officials who have in
the past been authorized to make records or information available
to the public from continuing to do so.
B.
C.
Any member of the public desiring to inspect or to obtain or make
a copy of any agency's records shall submit to the Records Access
Officer of that agency a request form prescribed by the Town Clerk,
unless the Records Access Officer waives the requirement of a written
request. The request shall reasonably describe the record or records
sought. Whenever possible, a person requesting records should supply
information regarding dates, file designations or other information
that may help to describe the records sought. No records may be removed
by the requester from the office where the record is located without
the permission of a representative of the agency involved authorized
by the head of the agency to give such permission.
D.
Records of an agency shall be made available for inspection or copying
or copies shall be furnished at the principal office of an agency,
if one exists, and if not, at a place designated by the Records Access
Officer, during regular business hours on regular working days. Records
in storage or at a location different from the principal office of
an agency shall be available for examination at those locations or
at the principal office of the agency, as determined by the Records
Access Officer.
E.
An agency shall respond to any request reasonably describing the record or records sought within five business days of receipt of the request. If the agency does not provide or deny access to the record sought within five business days of receipt of a request, the agency shall furnish a written acknowledgement of receipt of the request and a statement of the approximate date when the request will be granted or denied. If access to records is neither granted nor denied within 15 business days after the date of acknowledgement of receipt of a request, the request may be construed as a denial of access that may be appealed. Nothing in this chapter shall be construed to require any agency to prepare any record not already possessed or maintained by such agency, except the records specified in §§ 22-6, 22-7 and 22-8B of this chapter.
F.
After locating the record, the Records Access Officer, before permitting inspection, furnishing copies, or permitting copies to be made, may delete any information which would constitute an unwarranted invasion of personal privacy as set forth in § 22-9B of this chapter.
[Amended 6-4-2018 by L.L.
No. 14-2018]
G.
Any copying desired to be done by the applicant shall be done at
a place specified or approved by the Records Access Officer and in
the presence of a person designated by the Records Access Officer.
H.
If a record of which an agency is the legal custodian cannot be found
after a reasonable search therefor, the applicant shall be so advised,
and the Records Access Officer, if so requested orally by the applicant,
shall furnish the applicant with a certification that the record could
not be found.
I.
Fees. Except when a different fee is otherwise prescribed by law.
[Amended 6-4-2018 by L.L.
No. 14-2018]
(2)
An
agency may provide copies of records without charging a fee; or
(3)
An
agency may charge a fee for copies of records, provided that:
(a)
The fee for copying records shall not exceed $0.25 per page for photocopies
not exceeding nine inches by fourteen inches. This section shall not
be construed to mandate the raising of fees where agencies in the
past have charged less than $0.25 for such copies.
(b)
In agencies which do not have photocopying equipment, a transcript
of the requested records shall be made upon request. Such transcripts
may either be typed or handwritten. In such cases, the person requesting
records shall be charged for the clerical time involved in making
the transcript.
[Amended 6-4-2018 by L.L.
No. 14-2018; 3-9-2020 by L.L. No. 4-2020]
A.
In the event the Records Access Officer denies access in whole or
in part to the record requested, the party denied the access requested
may appeal on a form prescribed by the Town Clerk.
B.
Denial of access shall be reviewed by the Town Attorney's Office
before issuance and shall be in writing stating the reason therefor
and advising the person denied access of his or her right to appeal
to the person or body established to hear appeals, and that person
or body shall be identified by name, title, business address, and
telephone number.
C.
If an agency fails to respond to a request within five (5) business days of receipt of a request as required in § 22-10E hereof, such failure shall be deemed a denial of access by the agency.
D.
Any person denied access to records may appeal within thirty (30)
days of a denial to the Town Attorney.
F.
The Town Attorney or his designee authorized to determine appeals
hereunder shall inform the appellant and the Committee on Open Government
of its determination in writing within ten (10) business days of receipt
of an appeal. In the event that the Town Attorney or his designee
designated to determine appeals shall deny access to the record, he
shall, as part of his written determination, fully explain to the
person requesting the record the reasons for further denial. Following
denial of the appeal, the party denied access to a record may, in
writing, request a further appeal to a board composed of a Town official
designated by the Town Supervisor, a Town official designated by the
Town Board and a third person selected by the other two within ten
(10) business days from receipt of the Town Attorney's denial
of the appeal. The third person shall not be a member or employee
of any Town agency. A decision on the appeal shall be made by the
FOIL Board within twenty (20) days from receipt of the appeal. The
decision on the appeal shall be made by majority vote. The reason(s)
for any decision shall be explained fully in writing which shall be
sent to the requestor. A copy of the final determination of the board
shall also be sent to the Committee on Open Government within twenty
(20) days of receipt of an appeal.
Each agency shall post in a conspicuous location in its principal
office and in any place where it maintains records and file with the
Town Clerk a notice, setting forth the following items:
A.
The name, title, business address, business telephone number, or
home address and home telephone number, if there is no business address
or business telephone, of the designated Records Access Officer for
that agency;
B.
Where and when public records will be made available for inspection
and copying, or in the case of agencies having no regular office or
daily regular business hours, the procedure by which a person may
arrange for an appointment to inspect and copy records, and the specified
procedure must include the name, position, address and telephone number
of the party to be contacted for the purpose of making an appointment;
C.
The right of appeal by any person denied access to a record for whatever
reason, and the name and business address of the person to whom an
appeal is to be directed.
In addition to the information required to be transmitted to the New York State Committee on Open Government under § 22-11F hereof, the Town Attorney shall transmit to the aforementioned Committee, copies of all appeals upon receipt thereof. Said official or board shall also forward to the Committee the record upon review, including copies of any final judicial determination, whenever any agency determination is reviewed pursuant to Article 78 of the Civil Practice Law and Rules.
Nothing in this chapter shall be construed to limit or abridge
any existing right of access at law or in equity of any person to
public records kept by any agency of the Town. Notwithstanding any
rights granted herein, the members of the Town Board shall have a
right independent of this chapter to access in a reasonable manner
and at a reasonable time to all Town records in order to obtain information
which may be appropriate or essential to them in the proper and good
faith discharge of their responsibilities as Board members.
This chapter shall be effective immediately.
If any provision of this chapter or the application thereof
to any person or circumstances is adjudged invalid by a court of competent
jurisdiction, such judgment shall not affect or impair the validity
of other provisions of this chapter.
