Village PD withholds underground newsletter -- FOIL request denied

The River Reporter
Thursday, January 26, 1995

Village PD withholds underground newsletter

-- FOIL request denied

By TOM RUE

On the advice of village attorney Martin Miller, Monticello police chief Michael Brennan turned down a request by The River Reporter for a copy of the underground newspaper which led police to arrest a Monticello High School (MHS) student last week.

Village police officers left the village on January 13th in order to act on a "consent to search" form signed by a 17 year-old boy, Brennan said. The youth resides with his parents near the Town of Thompson Park, on Town Park Rd.

Police reportedly entered the bedroom of the youngster's parents, while they were out of state, and took as evidence a computer disk belonging to his father.

In a January 17th phone call, Brennan agreed to release a photocopy of the publication, known as The Sub-Station, if a written request were provided citing the Freedom of Information Law (FOIL). But when a reporter arrived at the station with the requested letter, Brennan called Miller.

After about 15 minutes, Brennan emerged from his office and reported Miller had instructed him not to release the publication because it related to a law-enforcement proceeding.

A copy of the newspaper was subsequently provided by MHS principal George Will who said he had been instructed by the district's legal counsel to give it to the media.

In a letter dated January 19th, Miller explained he withheld the newsletter because "...the materials you request are maintained as evidence and as such the Village does not have the authority to release the same to the public."

This assertion was disputed by attorney Robert Freeman, executive director of the NYS Committee on Open Government in Albany, contacted the next day. Freeman is a legal expert often consulted by government officials and the media on FOIL issues.

The request, Miller's denial, and a news account from last week's edition of this newspaper were provided to Freeman by fax.

"In my opinion there would be no basis for withholding this record. The character of the record does not change even though it might be characterized as evidence," said Freeman, citing specific case law in support of his opinion.

Freeman said the police department's copy of The Sub-Station constituted a "record" under FOIL. He called Miller's decision to withhold it "meshugas" -- a Yiddish term he defined as meaning "silliness."

According to Freeman, the exemption cited by Miller is designed to protect confidential police informants and sensitive data compiled for law-enforcement purposes, not information which is already publicly available.

In a January 17th village board meeting, Mayor Robert Friedland brought up the subject of the controversy brewing at MHS in order to assert that the village is uninvolved. "We're not recommending things and we're not the responsible party," said Friedland.

After the mayor's public statement, Miller's response to the FOIL request was brought to the attention of the village board. Miller was not present, though Brennan was in the audience.

Friedland and the board promised to investigate.