[HISTORY: Adopted by the Town Board of the Town of Amherst 4-7-2003 by L.L. No. 3-2003. Amendments noted where applicable.]
GENERAL REFERENCES
Administration of government — See Ch. 4.
Town Clerk — See Ch. 9.
Defense and indemnification of employees — See Ch. 14.
Code of Ethics — See Ch. 19.
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 Pursuant to this authority, other laws are specifically superseded by this chapter to the extent they vary or conflict with the provisions of this chapter.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:
AGENCY
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.
RECORD
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.
RECORDS ACCESS OFFICER
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;
(7) 
Are interagency or intra-agency materials which are not:
(a) 
Statistical or factual tabulations or data;
(b) 
Instructions to staff that affect the public; or
(c) 
Final agency policy or determinations; or
(8) 
Are examination questions or answers which are requested prior to the final administration of such questions.
B. 
In addition to the requirements imposed by Subsection A hereof, each agency shall maintain a record of the final vote of each member in every agency proceeding in which the member votes.
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.
C. 
Unless otherwise provided by this chapter, disclosure shall not be construed to constitute an unwarranted invasion of personal privacy pursuant to Subsections A and B of this section:
(1) 
When identifying details are deleted.
(2) 
When the person to whom a record pertains consents in writing to disclosure.
(3) 
When upon presenting reasonable proof of identify, a person seeks access to records pertaining to him.
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. 
The Records Access Officer is responsible for assuring that agency personnel:
(1) 
Maintain an up-to-date subject matter list;
(2) 
Assist the requester in identifying requested records, if necessary;
(3) 
Upon locating the records, take one of the following actions:
(a) 
Make records available for inspection; or
(b) 
Deny access to the records in whole or in part and explain in writing the reasons therefor;
(4) 
Upon request for copies of records:
(a) 
Make a copy available upon payment or offer to pay established fees, if any; or
(b) 
Permit the requester to copy those records;
(5) 
Upon request, certify that a record is a true copy; and
(6) 
Upon failure to locate records, certify that:
(a) 
The agency is not the custodian for such records; or
(b) 
The records of which the agency is a custodian cannot be found after diligent search.
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]
(1) 
There shall be no fee charged for the following:
(a) 
Inspection of records;
(b) 
Search for records; or
(c) 
Any certification pursuant to this section.
(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.
(c) 
The fee for copies of records not covered by Subsection I(3)(a) and (b) shall not exceed the actual reproduction cost, which is the average unit cost for copying a record, excluding fixed costs of the agency, such as operator salaries.
[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.
E. 
The time for deciding an appeal by the Town Attorney or body designated to hear appeals shall commence upon receipt of written appeal identifying:
(1) 
The date and location of a request for records;
(2) 
The records that were denied; and
(3) 
The name and return address of the appellant.
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.
G. 
A final denial of access to a requested record, as provided for in Subsection F of this section, shall be subject to court review, as provided for in Article 78 of the Civil Practice Law and Rules.
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.