[HISTORY: Adopted by the Town Board of the Town of Lansing 12-21-2016 by L.L. No. 11-2016. Amendments noted where applicable.]
A.
This chapter is adopted pursuant to the authority granted by and
in the Statute of Local Governments, the Municipal Home Rule Law,
and Public Officers Law Article 6, and the regulations promulgated
thereunder. Public Officers Law Article 6 is more commonly known as
the Freedom of Information Law and, together with its rules and regulations,
and as amended from time to time, it is hereinafter referred to as
"FOIL."
B.
The people's right to know the process of government decision-making,
and the documents and statistics leading to determinations is basic
to our society. This chapter provides information concerning the procedures
by which records may be obtained, and it is the stated purpose of
this chapter to direct Town personnel to furnish to the public the
information and records required by FOIL, as well as other records
otherwise available by law.
C.
This chapter applies to Town records and should not be deemed or
construed to require the Town or the Records Access Officer ("RAO")
to obtain records from other agencies or to create records that provide
the information sought. This chapter is designed to comply with the
basic requirements of FOIL and be a guide to assist in the understanding
of government and how records affect and influence policy and decision-making.
A.
The Town designates its Town Clerk as Records Access Officer ("RAO").
The Town Clerk is free to appoint one of his or her Deputy Clerks
as RAO, subject to formal approval of such appointment by resolution
of the Town Board.
B.
RAOs shall have the duty of coordinating the responses of the Town
to public requests for access in accordance with FOIL. In addition,
the RAO shall also:
(1)
Develop and maintain reasonably detailed and up-to-date subject matter
lists of the records and types of records in the possession of the
Town.
(2)
If necessary, or upon reasonable request therefor, assist the requester
in identifying requested records and crafting appropriate FOIL requests.
(3)
Contact persons seeking records when a request is voluminous, or
when locating records involves substantial effort, so that the RAO
may ascertain the nature of records of primary interest and attempt
to reasonably reduce the volume of records requested, or volume of
time required for searching, while also still serving the needs of
the requester.
(5)
Upon request for copies of records that are being made available:
(a)
Provide copies of the records in the medium requested, if the Town can reasonably make such copy or have such copy made by engaging an outside professional service, provided that the requester pays or agrees to pay fees, if any, established in accordance with FOIL or § 198-8 of this chapter;
(b)
Upon request, certify that a record is a true copy;
(c)
If unable to locate some or any portion of such requested records,
certify, in writing, that the Town is not the custodian for such records
or that the records cannot be found after a reasonably diligent search.
(6)
Establish a process or procedure whereby a person may arrange an
appointment to obtain assistance in respect to FOIL or to inspect
records. Such procedure shall include the name, position, address
and phone number of the RAO or other persons to contact for the purpose
of making an appointment.
C.
The RAO shall determine first whether requested records exist, and
then the RAO shall determine whether the request may be granted or
must be denied in whole or in part due to exceptions contained in
FOIL or due to statutes or obligations preserving confidentiality
or nondisclosure. The RAO may consult with the Attorney for the Town,
the Committee on Open Government, the Association of Towns, or any
other person or entity to provide assistance in making these determinations.
A.
Requests for public access to records shall be accepted during all
hours the Town Clerk's Office is regularly open for business.
B.
The Town may accept requests for records orally, but may also require
requests for records to be in writing. If accepted orally, the RAO
shall document the request and all responses thereto in reasonable
detail in writing. The RAO shall also accept requests for records
and respond thereto by electronic mail, unless the requester seeks
a response in some other form.
C.
Any records requested must be identified or described with sufficient
particularity so as to allow the RAO to locate and identify the records
sought. "Sufficient particularity" generally includes information
regarding applicable dates, file designations, document names or titles,
types of records, information within the record sought (such as keywords;
resolutions, approvals, etc.), or the office, officer, or body that
made such record, or any other reasonable identifying information.
D.
All requests shall state whether records are desired to be examined
or whether copies of the records are requested. Electing to examine
records does not preclude a later request for copies or reproduction.
E.
The RAO shall respond to a request within five business days of receipt
by:
(1)
Granting or denying access to records in whole or in part; or
(2)
Acknowledging the receipt of a request in writing, including an approximate
date when the request will be granted or denied in whole or in part,
which shall be reasonable under the circumstances of the request and
shall not be more than 20 business days after the date of the acknowledgment.
(3)
However, if it is reasonably known or believed that the records cannot
be obtained or produced within 20 days, then the RAO shall provide
a statement, in writing, indicating the reason for the inability to
grant or deny the request within such 20 days, and the RAO shall further
provide a date certain, within a reasonable period of time under the
circumstances of the request, when the request will be granted or
denied in whole or in part.
F.
If the request was acknowledged in writing and included an approximate
date when the request would be granted in whole or in part within
20 business days of such acknowledgment, but circumstances prevent
disclosure within that time, the RAO shall provide, within such twenty-day
period after acknowledgement:
G.
In determining a reasonable time for granting or denying a request
under the circumstances of a request, the RAO shall consider the volume
of a request; the ease or difficulty in locating, retrieving or generating
records; the complexity of the request; the need to review records
to determine the extent to which they must be disclosed or protected
information redacted therefrom; the number of requests received by
the Town; and similar factors that bear on the ability to grant access
to records promptly and within a reasonable time frame.
H.
If records are maintained on the Internet, the requester shall be
informed that the records are accessible via the Internet and can
be further printed or provided in another information storage medium
upon payment of any applicable fees.
I.
A failure to comply with the time limitations set forth above constitutes
a denial of a request that may be appealed.
A.
A denial of access to records shall be in writing stating the reasons
therefor. Such writing shall also advise the requester of the right
of appeal, the deadline for an appeal, and the name and address of
the body or officer to whom an appeal shall be directed.
B.
If a denial occurs due to a person requesting records that cannot
be found or replied to because the request, or a portion of the request,
does not reasonably describe the records sought, the RAO shall inform
the requester that they can seek assistance from the RAO to help enable
such person to frame a request reasonably describing such records
and then submit an updated FOIL request.
C.
If the Town or the RAO fails to comply with the time limitations
for records production as set forth in this chapter or in FOIL, such
failure(s) shall also be deemed a denial of access effective on the
date of noncompliance. Noncompliance shall include situations in which
an officer or employee:
(1)
Does not grant access to the records sought, does not deny access
in writing, or does not acknowledge the receipt of a request within
five business days of the receipt of the request.
(2)
Acknowledges the receipt of a request within five business days but
does not furnish an approximate date when the request will be granted
or denied in whole or in part.
(3)
Furnishes an acknowledgment of the receipt of a request within five
business days with an approximate date for granting or denying access
in whole or in part, or responds to a request stating that more than
20 business days is needed to grant or deny the request in whole or
in part, and the date provided is unreasonable under the circumstances
of the request.
(4)
Does not respond to a request within a reasonable time after the
approximate date given or within 20 business days after the date of
the acknowledgment of the receipt of the request.
(5)
Determines to grant a request in whole or in part within 20 business
days of the acknowledgment of the receipt of a request, but does not
do so, unless the Town provides the reason for its inability to do
so, in writing, and a date certain within which the request will be
granted in whole or in part.
(6)
Does not grant a request in whole or in part within 20 business days
of the acknowledgment of the receipt of a request and does not provide
the reason in writing explaining the inability to do so and a date
certain by which the request will be granted in whole or in part.
D.
Some of the principal reasons for denial are set forth in Public
Officers Law § 87, Subdivision 2, and within FOIL certain
exceptions to disclosure and production include records or portions
thereof that:
(1)
Are specifically exempted from disclosure by state or federal statute
or regulations.
(2)
If disclosed would constitute an unwarranted invasion of personal
privacy, including, but not limited to:
(a)
Disclosure of employment, medical or credit histories, or personal
references of applicants for employment;
(b)
Disclosure of items involving the medical or personal records
of a client or patient in a medical facility;
(c)
Sale or release of lists of names and address if such lists
would be used for commercial or fund-raising purposes;
(d)
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 Town in maintaining
it;
(e)
Disclosure of information of a personal nature reported in confidence
to the Town and not relevant to the ordinary work of the Town;
(f)
Information of a personal nature contained in a workers'
compensation record; or
(g)
Any records disclosed or disclosable in connection with any
name or address that may be or become personally identifying information,
the disclosure of which is prohibited by Article 6-A of the New York
Public Officers Law, more commonly known as the Personal Privacy Protection
Law ("PPPL"), and further FOIL rules pertaining to the PPPL are set
forth below.
(3)
If disclosed, would impair present or imminent contract awards or
collective bargaining negotiations.
(4)
Are trade secrets or are submitted to the Town by a commercial enterprise,
or derived from information obtained from a commercial enterprise,
and 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, could endanger the life or safety of any person.
(7)
Are inter-agency or intra-agency materials, except:
(8)
Are examination questions or answers which are requested prior to
the final administration of such questions.
(9)
If disclosed, would jeopardize the Town's capacity to guarantee
the security of its information technology assets, such assets encompassing
both electronic information systems and infrastructures.
(10)
Are photographs, microphotographs, videotapes or other recorded
images prepared under authority of the New York State Vehicle and
Traffic Law.
The PPPL (and related laws and regulations) mandates that certain
information about persons may not be disclosed, including under FOIL
or by municipalities generally, even if the information may otherwise
be public or obtainable. Thus, for example, even though a person's
name and address can be obtained from an official public tax roll,
it is still improper and a potential or actual violation of law for
the Town to disclose the name and address of any person in reply to
a FOIL request (though there are exceptions as well). Therefore, to
inform the public and provide guidance to the RAO and others concerning
the PPPL and personal privacy laws, the following protection and redaction
rules are implemented as part of this chapter:
A.
For purposes of this policy, "personal information" means any information
concerning a natural person, as opposed, for instance, to a corporate
entity, which, because of name, number, symbol, mark, or other identifier,
can be used to identify that natural person. To prevent an unwarranted
invasion of personal privacy the RAO and all Town officers and employees
shall observe guidelines for the nondisclosure or redaction of identifying
details from specified records according to rules promulgated by the
New York State Committee on Open Government, or as otherwise required
by law.
B.
In the absence of specific guidelines for a particular situation,
personal information and identifying details shall not be disclosed,
or shall be redacted and made unreadable and nonrecoverable, whenever
such disclosure may constitute an unwarranted invasion of personal
privacy. In addition to FOIL exemptions, this shall include the following:
(1)
Disclosure of employment, medical or credit histories or personal
references of employees and applicants for employment.
(2)
Any person's social security number or any significant portion
thereof.
(3)
Disclosure of items involving the medical or personal records of
any person or employee, including any medical facility records or
medically related records, including, without limitations, workers'
compensation records, disability records, records pertaining to disability
accommodations, and other medical records protected by HIPAA (the
Health Insurance Portability and Accountability Act of 1996, as now
codified or hereafter amended).
(4)
Disclosure of lists of names and addresses if such lists would be
used for commercial or fund-raising purposes.
(5)
Disclosure of information of a personal nature when disclosure would
result in economic or personal hardship to the subject person and
such information is not relevant to the work of the agency or person
requesting or maintaining such records.
(6)
Disclosure of information of a personal nature reported in confidence
to an agency and not relevant to the ordinary work of such agency.
C.
The nondisclosure or redaction rules stated above shall not apply
when the records are actually redacted, when the person to whom a
record pertains consents, in writing, to disclosure, or when a person,
upon presenting reasonable proof of identify, seeks their own records,
or when otherwise required by law.
D.
Voice mail, e-mail, computers, computer networks, digital media and
storage and transfer devices, computer files, software programs, and
all communications created on, received by, stored on or transmitted
through those systems are the sole and exclusive property of the Town.
Records, data, files, software, and all electronic communications
contained in these systems likewise are the property of the Town.
These systems and their contents are subject to inspection, examination
and monitoring by authorized Town officers and personnel (or authorized
third-party contractors) at any time and without notice. The authorized
personnel are the Town Supervisor, the in-house IT, the Town Clerk
and Deputy Town Clerk, and any of their designees as indicated by
a written document bearing their original signature(s). No organic
data or metadata shall be supplied in any native format unless it
is cleared of any personal information.
E.
Town officers and employees are advised that the computers, computer
networks, e-mail systems, telephone systems (including voice mail),
and other electronic communications systems (and all communications
created on, received by, stored on or transmitted through those systems)
are the sole and exclusive property of the Town and that there is
and should not be any expectation of privacy regarding any such documents,
records, or communications. Passwords are only intended to prevent
unauthorized access to e-mail, computer files, or voice mail, but
the Town reserves the right to allow authorized persons to access
messages and files on the Town-owned systems or telephones at any
time, and all employees must supply their current passwords to the
Town Supervisor, who shall keep the same secured from third-party
review or capture.
F.
The collection of information through Town websites, servers, and
telephones, and similar devices used by the public and by the Town,
are further subject to the provisions of the Internet Security and
Privacy Act. Participation in an online transaction resulting in the
disclosure of personal information to the Town by the user, whether
solicited or unsolicited, constitutes consent to the collection and
disclosure of such information by the Town for the purposes reasonably
ascertainable from the nature and terms of the transaction. Nonetheless,
if any such personal information is the subject of a FOIL request,
the above-noted rules of nondisclosure or redaction shall apply unless
such disclosure is:
(1)
Necessary to perform the statutory duties of the Town, or necessary
for the Town to operate a program authorized by law, or authorized
by state or federal statute or regulation.
(2)
Made pursuant to a court order or otherwise compelled by law.
(3)
For the purpose of validating the identity of the user.
(4)
Of information to be used solely for statistical purposes that is
in a form that cannot be used to identify any particular person.
G.
While Town officers and employees are prohibited from misusing or
improperly disclosing personal information, these policies shall not
provide any claim or cause of action should improper disclosure occur,
and the information provided in this privacy policy should not be
construed as giving business, legal, or other advice, or warranting
that the Town's systems are fail-proof, or that all information
provided through the Town's website or hosted on any Town servers
or media are not subject to being improperly accessed by any person.
Town officers and employees and the public are warned that the Town
utilizes telephonic and facsimile transmissions and e-mail and web-based
correspondences in the provision of municipal services, and these
are each and all digital forms of communication that carry unique
risks, including, but not limited to, the accidental, unlawful, or
improper interception thereof by unintended recipients and the transmission
of viruses, malware, and other deleterious codes.
Upon any failure to locate any requested records, the RAO shall
certify that the Town of Lansing is not the custodian for such records,
that the records of which the Town of Lansing is a custodian cannot
be found after a reasonably diligent search, or that the records requested
have been destroyed pursuant to NYS archives and related rules regarding
document retention schedules and document destruction.
Records shall be available for public inspection at the Office
of the Town Clerk during regular office hours.
A.
Upon receipt of a request for copies of records, the RAO shall make
such copies available upon payment of established fees set in accordance
with this chapter and the requirements of FOIL.
B.
Original Town records may not be removed from Town buildings under
or in relation to this chapter, except by or under the supervision
of the RAO for purposes of compliance herewith, such as to make copies.
C.
There shall be no fee charged for inspections of records, searches
for records or for any general administrative costs, or for any certifications
required under this chapter or FOIL. Nor may any fee be charged for
an appeal.
D.
The Town Board may by resolution update and provide for additional fees for photocopying and related goods and service costs incurred under or in relation to requests submitted under this chapter and FOIL, including the provisions of this § 198-8, Fees and copies; however, such fee schedule shall not charge any costs or expenses prohibited by FOIL or other requirements of New York law. Unless otherwise governed by applicable law or by any updated fee schedule hereafter adopted, fees shall be charged at a rate of $0.25 per page for photocopies not exceeding nine inches by 14 inches. The actual cost for copying other records, such as electronic records, may be charged as follows:
(1)
A reasonable per-page rate for oversized paper of not less than $0.25
per page, and not greater than $1 per page or the actual costs of
reproduction per page, unless the document must be sent to an outside
agency for reproduction.
(2)
An amount equal to the hourly pay attributed to the lowest paid employee
who has the necessary skill required to prepare a copy of the requested
record, including the cost of redaction or preparing copies with confidential
or other nondisclosed matters protected or removed, except that no
fee shall be charged unless at least two hours of an employee's
time is needed to prepare the copy;
(3)
The actual cost of the storage devices or media (such as a computer
disk) provided to the person making the request. If the requester
provides its own media, then there shall be no charge.
(4)
If the Town's information or reproduction technology equipment
is inadequate to prepare a copy of the record, or if the Town for
some other reason is unable to prepare a copy of the record itself,
the actual cost to the Town of engaging an outside professional or
service company to prepare a copy.
(5)
However, no amount may be charged for an employee's time or
for use of an outside professional or service company unless the requester
is informed of the fee and its estimated cost in advance. If the requester
rejects such amount, the requester may still examine such record(s)
but may not require a copy at such time.
E.
The foregoing provisions regarding fees and copying expenses do not
apply when a different fee is otherwise prescribed by FOIL or any
applicable statute.
A.
The Town Supervisor is hereby designated as the person who shall
determine appeals regarding denial of access to records, as well as
any other appeals under FOIL and this chapter, and such appeals shall
be delivered to the following mail or electronic addresses:
B.
All appeals shall be filed within 30 days of the date of any reply
denying a FOIL request in whole or in part, or within 30 days of any
other event giving rise to an appeal.
C.
A written appeal shall state the following:
(1)
The date of the appeal, the date of the request for records, and
the date of any denial of records or other applicable date or time
that gives rise to the appeal.
(2)
The specific requests denied and the records to which the requester
was seeking access.
(3)
So far as known, the reasons for the denial of access to the requested
records, including whether the denial was in writing or due to the
failure to provide records promptly.
(4)
The name and return address of the requester.
D.
The time for deciding an appeal shall commence upon receipt of a
written appeal that meets the above informational guidelines, and
the determination upon the appeal shall be provided to the appellant-requester
within 10 business days of receipt of an appeal. A failure to determine
an appeal within 10 business days of its receipt by granting access
to the records sought or by fully explaining the reasons for any further
denial, in writing, shall constitute a denial of the appeal.
E.
A copy of every appeal or determination upon appeal shall be filed
with the New York State Committee on Open Government as required by
FOIL.
A.
A notice containing the title or name and business address of each
RAO and each appeals person or body, and the location where records
can be seen, shall be posted in the Town Clerk's office in accord
with FOIL.
B.
Such notice shall also be posted upon the Town's website and
the Town Clerk's official signboard, and such online posting
shall further state or include the times and places that public records
are available for inspection, information on how to request records
in person, by mail or by e-mail, and a link to the website of the
New York State Committee on Open Government.
By listing references to and rules and exceptions to FOIL production
and disclosure in this chapter, the Town is seeking only to provide
an informative process for the public. In all such cases, actual reference
to FOIL is required for the exact wording of the law, including updates
or amendments to the New York State Public Officers Law. When required
by law, the terms and requirements of FOIL as to document disclosure
exemptions and exceptions and reproduction and copying fees shall
be controlling, and the terms of this chapter shall yield when in
conflict therewith.
If any provision hereof, or the application thereof to any person
or circumstance, is adjudged invalid by a court or tribunal of competent
jurisdiction, such provision shall be deemed severed and any such
judgment shall not affect or impair the validity of the other provisions
of this chapter (which shall remain in force and effect) or the application
hereof to other persons and circumstances.
