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Feb 18, 2016 4:55 PMPublication: The Southampton Press

Southampton Town Must Pay Legal Fees After Failing To Honor FOIL Request

Feb 24, 2016 11:20 AM

The Southampton Town Trustees have been ordered to pay the legal fees accrued by the South Shore Press, a Shirley-based weekly newspaper, in its legal fight to obtain financial documents through a Freedom of Information Law request filed almost six years ago.

The court decision wraps up a nearly six-year legal battle between the two parties, which started on May 28, 2010, when the newspaper submitted a FOIL request to the Trustees seeking financial records. The Trustees failed to respond to the request within five days, as required by the law. After a month, the town attorney’s office denied the FOIL request on the grounds that it was “unduly broad or voluminous.”

The editorial staff appealed the decision, but the Trustees never answered the appeal, according to court documents. The newspaper then filed a lawsuit in State Supreme Court, and that court agreed that the documents should be provided by the Trustees—but Justice Thomas Whelan stopped short of awarding legal fees, as sought by the plaintiffs.

On February 17, an appellate court unanimously overturned the lower court’s decision, saying the town must pay the plaintiffs’ legal fees associated with the case. The issue was remanded back to State Supreme Court to settle on the amount. According to J. Lee Snead, a Bellport-based attorney representing the South Shore Press, both sides are slated to meet in March to determine how much money the Trustees will pay.

“The award of attorney’s fees is intended to ‘create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good-faith effort to comply with the requirements of FOIL,” the decision reads.

That ruling could become the new norm for FOIL request lawsuits. According to Robert Freeman, executive director of the Committee on Open Government, Governor Andrew Cuomo’s executive budget proposal this year includes a proposal suggested by the committee to tighten FOIL restrictions. Currently, the court has the option of awarding a plaintiff attorney’s fees in a case where a municipality has failed to answer a FOIL request in the requisite time, or has unreasonably refused to provide public information. The new wording would mandate the awarding of attorney fees in such instances.

The Freedom of Information Act was established in 1967, giving the public the right to request access to records from any federal agency, according to foia.gov. Under the law, government agencies are required to provide the information requested, unless it falls under one of nine exemptions, mostly involving personal privacy, national security and law enforcement.

New York State’s Freedom of Information Law is patterned after the federal measure. Any municipal or government agency can be subject to FOIL requests, and it must respond within five business days of receiving the request. However, if it will take longer to compile the requested information, the initial response may just acknowledge the request was received.

This week, Mr. Snead said his client, the South Shore Press, had requested the financial records to investigate how the Trustees were spending money after receiving a tip. He added that although the news organization did eventually receive the documents—two and a half years after the initial request was made—it opted not to move forward with an article, saying by that time there was already a lawsuit filed against the Trustees pertaining to their financial practices.

In September 2015, the Trustees won a State Supreme Court appeal, reinforcing their status as a government entity separate from the Southampton Town Board, a decision that allowed the Trustees to maintain control over their own finances.

The decision was the result of an injunction issued in February 2014 freezing the Trustees’ bank accounts after a group of residents of West Hampton Dunes—several of whom were embroiled in another suit against the Trustees—won a January 2014 decision that said the Trustees were not an autonomous board and that the Trustees violated state law when they failed to give their revenues to the town as part of the official town budget.

“There were some concerns on how the Trustees were spending their money, and that was the basis for the request,” Mr. Snead said of the FOIL request. “It was just an issue that had been brought to them by somebody, and they thought it was something worth looking into.”

The Southampton Town attorney’s office was not available for comment.

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Serves them right.
By dnice (2346), Hampton Bays on Feb 18, 16 6:08 PM
Nice job by the town attorney--defaulting.
By Doug Penny (63), Hobe Sound, FL on Feb 18, 16 6:26 PM
Last I looked, the Southampton Town Trustees had an attorney of their own.

Not that the Town Attorney hasn't whiffed in similar instances -- answering that lawsuit filed by Nancy Genovese who was wrongfully arrested/detained on the road outside of Gabreski Airport?
By Frank Wheeler (1823), Northampton on Feb 18, 16 8:53 PM
You're right, Frank. I've been away too long (and that's a good thing). Suspect I just left myself open to a sucker punch!
By Doug Penny (63), Hobe Sound, FL on Feb 19, 16 4:32 PM
By Lets go mets (377), Southampton on Feb 18, 16 8:53 PM
It's obvious that the Town Trustees are pretty inept in handling business in today's world. Waving the Dongan Patent just doesn't cut it anymore. From the Beach Access issue, to this, to poor financial record keeping and forfeiting it over to the town they're losing credibility fast. Yes, they're mostly baymen (Scott H.)? and have a passion, that's great but run a tight ship in the office like you do when you go out on the bay during a Winter day. That's what you're there for...
By lirider (288), Hampton Bays on Feb 18, 16 11:25 PM
Im looking at you, Jeffrey Sander and North Haven Village! :p
The worst of the worst local governmental bodies...
By Brandon Quinn (191), Hampton Bays on Feb 19, 16 10:15 AM
What was the particular tipoff about made to the South Shore Press - regarding how trustee monies were being spent - anybody know? Since the the Shirley paper is not going to print the story after their research and potential findings...and the trustees have already been sued over their financial practices....one can only wonder what was the core issue.
By Vikki K (490), Southampton on Feb 25, 16 1:18 PM
This issue dates back to 2010, A foil officer has the responsibility of handling these requests, not individual Trustees. The Trustees won the court case about control of finances. In addition, the Trustees did not forfeit anything to the town. They signed an intra-municipal agreement to utilize the Town Comptroller to make sure finances were handled safely and properly, employing the highest degree of technology the Town has to offer. and as far as beach access is concerned,diligent efforts are ...more
By 007 (45), East Quogue on Feb 28, 16 8:16 PM
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