A Freedom of Information Law request filed by Bill Lofquist on March 12, 2007 is now under appeal after the Town of Geneseo failed to provide a number of requested items. In reviewing the town attorneys’ billing records, Lofquist found additional items of interest not covered by his previous FOIL requests.
The town had 20 days to provide the documents, but when the deadline passed earlier this week, only four of the 12 requested documents had been provided and no explanation was given on the missing items. Under the FOIL law, failure to respond to a request is considered a refusal, and therefore Lofquist has filed an administrative appeal with Supervisor Wes Kennison, the town’s FOIL Appeal Officer.
The appeal also includes a demand that any records that are not being provided because they are lost or destroyed be certified as such as required by law. Such a certification by Town Clerk Jean Bennett was provided for 10 records that were claimed to be missing from a October 2006 FOIL request. That claim is now the subject of an pending Article 78 proceeding in State Supreme Court.
The town has 10 days to respond to the appeal, after which Lofquist may sue for the missing items if they are not provided. “We believe that under the law and recent court cases, the town is required to do more than just provide a unsubstantiated claim that they can’t find the documents” Lofquist said. He cited the case of Key v. Hyme in which the Appellate Division required that an agency that claimed that a record was missing “submit an adequate affidavit attesting to the diligence with which they have searched for the requested documents.”