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Village of Ellenville Imposed $300 "Administrative Fee" Above Statutory Per Copy Charge

COMMITTEE ON OPEN GOVERNMENT ASSISTS LAGRASSE FOIL REQUEST

Records of Citations of Rental Properties Sought

 

Small landlords in Ellenville, New York, have complained to the Property Rights Foundation of America that they are being squeezed with numerous unjustified inspections and citations from the building and police departments that made it difficult to survive in their business. One of the landlords, Paul T. Johnson, who owns a charming enclave of older houses in a shady section of Ellenville, has been systematically publicizing the treatment that he receives from the village government by sending letters to the editor that have been printed in the Ellenville Press. In speech, Mr. Johnson is reserved and low spoken, but his letters speak powerfully. He happens to be a retired technical writer, who specialized in documentation, with a degree in English from Columbia University. His compiled letters, published in total on the PRFA web site (link), present a veritable indictment of government's all-too-common unfair treatment of small landlords. The topics range from the "Dynamics of Slum Development" via enforcement of rules and regulations to an account of seeing the police chief scornfully giggle when Mr. Johnson reported publicly to the Village officials that police were seen entering rental units when neither tenant nor landlord were present.

Independent landlords serve the community by providing residences for families of moderate means and single people, often minorities working at low salaries and who rely on inexpensive rent. These business people provide housing at fair rents without government subsidy, while often facing the competition of below-market rents provided by subsidized housing.

By August 2003, the Village had accumulated "27 petty, persnickety tickets" against Mr. Johnson, he wrote. During that month, Mr. Johnson pointed out an alarming development, a potential Catch-22 for the small landlord. He said that the assistant building inspector had been delaying doing her annual inspections, and that, as a result, he was being cited for not having a Certificates of Rental Safety. He attributed the delays to the inspector's work overload. But he feared that the blame for the delay could be ascribed to the property owner and he could land in jail as a result.

With the situation escalating, I thought that it might be valuable to document the treatment that landlords in Ellenville were experiencing. One way to do this would be to study the past two years' safety inspections. However, my telephone call to Brian Schug, the building inspector, received a surprising response.

"It would cost thousands of dollars" to copy them, he said. "There are hundreds and hundreds of sheets. This would take a lot of time."

When asked whether he would charge the normal rate of twenty-five cents per sheet, he replied that he would charge on a "special basis, a consulting fee basis." This would be charged on an hourly basis, he said.

In answer to questions, he said that there are about 800 rental units in Ellenville, and that the request involved in the "high hundreds of paper." He said that the request would have to go through the attorney. He said that this was a project that is beyond the capacity of his department, and that the Code of the Village of Ellenville provided for additional fees for Freedom of Information Requests. He asked a few times whether there was a particular property that was of interest.

A few days later, on August 14, I faxed a letter to Mr. Schug requesting copies of all citations issued by the building department since January 1, 2002. On August 27 the town attorney replied by letter that the request was denied.

"The Village is denying this request at this time as it has been confirmed that photocopies of these documents, at the statutory rate of $0.25 per page, will be in excess of One Hundred and 00/100 ($100.00) Dollars," wrote Philip M. Cataldi, of Berger & Friedman Law Offices in Ellenville.

"If you still wish to proceed, I suggest that you submit a more specific and narrowed request of these documents sought," he wrote.

I began the FOIL request over again, thinking that perhaps my request that the Village notify me if the cost exceeded $100.00 was becoming an impediment to their complying. In this letter, mailed on September 3, I also requested a copy of the Ellenville's rules implementing the Freedom of Information Law.

Unknown to me, on the day before I re-wrote the FOIL request, Village Justice Ronald Elias sentenced Mr. Johnson to jail for 31 accumulated violations, according to the Daily Freeman, the newspaper in nearby Kingston. After spending the night in jail, Mr. Johnson was released on $5,000 cash bond and $10,000 property bond, according to the Freeman. The newspaper said that Mr. Johnson said, "Judge Elias exudes hate and hostility towards me. He's done this before. He's put me in jail twice before for…little things."

Mr. Johnson wrote a letter to the editor of the Freeman, pointing out numerous substantive errors in the article about his arrest. One of the corrections dealt with the alleged 31 violations.

He wrote: "None of the 26 (not 31) tickets applied to any of my buildings. They were: (6) for lids off garbage pails; (7) for grass over 10 inches high on properties that either had no grass or whose grass was not longer than 3-4 inches; (4) were for tenants vehicle being stored in driveway, whose owner made numerous promises to remove it, to landlord, but reneged on promises; (4) were for litter around trash barrels (we have 46 in all), a few of which are toppled over almost nightly by either coons, possums, cats, skunks, or by accident. (We are member of Wash DC Backyard Wildlife Habitat Assoc.)"

During November, I finally received a reply from Mr. Cataldi, dated November 12, stating that there are approximately four hundred papers for the building violations, for which $100.00 for photocopying fees should be forwarded in advance.

"However," he continued, "the volume of material in your request will require the one full-time building inspector or other officer to sift through approximately one thousand five hundred…files representing buildings, dwellings, and apartment units located within the Village. It is anticipated that this will require at least four to five hours to accomplish. Therefore, the Village further requests an administrative fee of three hundred and 00/100 ($300.00) to cover the time taken away from the searching officer's attention to its other daily duties."

After an additional letter from me, Mr. Cataldi sent the copy of the local Ellenville ordinance for "Public Access to Records," with the designation of the freedom of information officer and the appeals officer.

I sent copies of the correspondence to Robert J. Freeman, the Executive Director of the New York State Committee on Open Government, asking him whether it was permissible under the Freedom of Information Law that the Village of Ellenville could charge the $300.00 administrative fee in addition to the $100.00 fee for photocopying.

On December 18, 2003, Mr. Freeman wrote a three-page staff advisory opinion for the Committee on Open Government in response to my inquiry.

"I have received your letter in which you questioned the propriety of an 'administrative fee' sought to be imposed by the Village of Ellenville, in addition to a fee for photocopying. The fee, according to the Village Attorney, is intended to 'cover the time taken away from the searching officer's attention to its other daily duties," Mr. Freeman wrote in the advisory opinion.

"From my perspective, unless a statute, an act of the State Legislature, authorizes an agency to charge a fee for personnel time, searching for records or charging more than twenty-five cents per photocopy for records up to nine by fourteen inches, no such fees may be assessed. In this instance, I know of no statute that would authorize the Village to do so," wrote Mr. Freeman.

A problem had arisen, according to Mr. Freeman, that the until 1982 the Freedom of Information Law stated that an agency could charge up to twenty-five cents per photocopy unless a different fee was prescribed by "law." In 1981, the Committee had pointed out in its fourth annual report to the Governor and the Legislature, "The problem is that the term 'law' may include regulations, local laws, or ordinances, for example. As such, state agencies by means of regulation or municipalities by means of local law may and in some instances have established fees in excess of twenty-five cents per photocopy, thereby resulting in constructive denials of access. To remove this problem, the word 'law' should be replaced by 'statute', thereby enabling an agency to charge more than twenty-five cents only in situations in which an act of the State Legislature, a statute, so specifies."

As a result of the Committee's report, the Legislature amended the Freedom of Information Law. Mr. Freeman's advisory opinion stated that before October 15, 1982 a local law could establish a search fee in excess of twenty-five cents. "However, under the amendment, only an act of the State Legislature, a statute, would in my view permit the assessment of a fee higher than twenty-five cents per photocopy, such as a fee for search. In addition, it has been confirmed judicially that fees inconsistent with the Freedom of Information Law may be validly charged only when the authority to do so is conferred by a statute [see Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)]."

Concluding with a discussion of the Freedom of Information Law and state regulations, Mr. Freeman's advisory opinion makes the rights of citizens under the FOIL crystal clear, "As such, the Committee's regulations specify that no fee may be charged for personnel time, for inspection of or search for records, except as otherwise prescribed by statute."

"Lastly, although compliance with the Freedom of Information Law involves the use of public employees' time, the Court of Appeals has found that the Law is not intended to be given effect 'on a cost-accounting basis', but rather that 'Meeting the public's legitimate right of access to information concerning government is fulfillment of a governmental obligation, not the gift of, or waste of, public funds' [Doolan v. BOCES, 48 NY 2d 341, 347 (1979)]," wrote Mr. Freeman.

A few days after receiving Mr. Freeman's advisory opinion, I wrote a letter to the Village's FOIL Appeals Officer, who is the Village Manager, asking that the requirement for the excessive "administrative fee" be reversed.

It will be interesting to see whether local government officials further obstruct my attempt to study the citations issued to rental properties in the Village of Ellenville.

- Carol W. LaGrasse
December 29, 2003

 

Letter by Robert J. Freeman, Executive Director, Committee on Open Government, State of New York, to Carol W. LaGrasse, December 18, 2003
Advisory Opinion whether Village of Ellenville may impose an "administrative fee" in addition to a fee for photocopying

 

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