Public info off limits to resident

Atlantic Beach village officials say they will not release documents requested by a resident in 2008, despite a decision last year by the Committee on Open Government that those documents are considered pubic records under the Freedom of Information Law, or FOIL.

In March of 2008, Atlantic Beach resident Victoria Simao said, she requested copies of village-administered building permits, but her request was denied because it was determined by the village that she had a history of political activity. Simao had run a failed campaign for a village trustee seat in 2006. She said she will file a FOIL request for the documents again — if there is a chance that the village will release them this time around.

"I would never say you're not allowed to get building permits," said Village Attorney Charles Kovit, who reviews FOIL requests.

Kovit said he did not remember reading the decision by the Committee on Open Government, but last week, after receiving a copy of the decision from the Herald, he recalled that he had applied an exception in turning down Simao: "In this given context, where it's being asked for by people who are very active in the village."

Kovit added, "It's my legal position that you have to consider the FOIL request given [the applicant's] political history. I thought there was too much of a chance that people's private lives would be put on display."

Kovit's explanation matches what Simao said she was told by Village Clerk Emily Siniscalchi in 2008. Simao said that Siniscalchi told her that she would have to sue the village if she took issue with its denial of her request.

"The village should just let us have [the documents] without suing or going to court," said Simao's brother, Richard Libbey, who is also a politically active village resident.

Simao said she filed a blanket FOIL request for every building permit granted by the village, suspecting that it was granting improper permits. "They're giving a permit to do a renovation on a totally torn-down house," she said. "When you're doing things illegally you tend to cover your tracks."

In April of 2008, Simao asked for an opinion from the Committee on Open Government, a division of New York State's Department of State that advises citizens on their rights to obtain information through FOIL. The committee concluded 10 months later that the village had improperly denied her access to the permits.

Despite the committee's opinion, however, the village is standing by its decision. "We're not legally bound by [its] opinion, and think [it is] too narrowly interpreting the legal standards," Kovit said.

Though there are a range of legal grounds on which FOIL requests can be denied, the committee contended that none of them applied to Simao's request. The village responded by saying that the request was denied because "full disclosure of the records to [Simao] would create a likelihood of harassment of homeowners or occupants ..."

Kovit cited an appellate court decision outlining the test for determining an unwarranted invasion of privacy. The committee stated that it disagreed with Kovit's interpretation of the law, and cited a previous case in support of its conclusion that records "should be made equally available to any person, regardless of ... the intended use of the records."

The village, Kovit said, is not bound to redress the denied FOIL application because of a legal principle that protects governments from having to revisit administrative decisions. If Simao were to refile the same FOIL, Kovit said, he would research similar cases before coming to the same or a different

decision.

To obtain information under the Freedom of Information Law, he explained, a resident must send a letter to the village that is specific in its request. The villages of Cedarhurst and Lawrence have pre-formatted FOIL applications that are reviewed by the village attorney and, as is the case in Atlantic Beach, must be acknowledged within five

business days.

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