FOI Commission member says Vernon in violation of records disclosure law

By Suzanne Carlson
Journal Inquirer
Published: Monday, January 2, 2012 2:19 PM EST

VERNON — A proposed decision from the Freedom of Information Commission says the town violated public records disclosure laws when former Republican Mayor and U.S. Senate hopeful Jason L. McCoy responded to a freedom-of-information request with a $950 bill from his private law firm.

Sherman D. London, a member of the state Freedom of Information Commission, issued the proposed decision in response to a April 14, 2011, complaint by the Journal Inquirer, which filed a request for all emails sent to or from Christopher D. Bandecchi.

The full commission is scheduled to vote on the proposed decision Feb. 8.

In the decision, London said the town violated disclosure requirements in three sections of state law, and must provide free copies of Bandecchi’s emails.

McCoy hired Bandecchi in December 2010 as a personal public relations aide at a rate of $26.78 per hour, and he now serves under Republican Mayor George F. Apel.

McCoy’s $950 invoice would have been billed to the town as a private contractor expense had the Journal Inquirer agreed to pay, and he has argued the fee was proper because he was acting as a private lawyer while searching for the emails, not mayor.

On May 3, former Assistant Town Administrator Peter Graczykowski responded to the Journal Inquirer’s freedom-of-information request, saying the town had incurred expenses totaling $950 from an “outside agency.”

When pressed for clarification, Graczykowski provided an invoice from McCoy’s law firm listing a $600 fee for “email retrieval” and a $350 fee for “email search and Pdf for FOI” and said the costs were authorized in circumstances where “another agency or contractor” provides the town with computer storage.

The Vernon mayor is an elected official with a salary of $20,749, but McCoy had classified himself as an independent contractor and charged his private lawyer’s rate of $250 per hour for 3.8 hours of work.

McCoy said he would not provide the documents without a check for $950.

On May 13, the Journal Inquirer filed a complaint to the FOI Commission, saying McCoy attempted to profit from the request by charging for his efforts to locate the emails, which is prohibited by state law.

A hearing on the matter was scheduled for Sept. 22, but lawyer Martin B. Burke asked for and received a postponement, saying, “Mayor McCoy will not be available.”

Town Attorney Harold Cummings later took over the case and represented McCoy and the town at an Oct. 19 hearing.

At that time, “the respondent’s position had changed. The respondent no longer believed that he could charge his private hourly rate, but rather, he could charge at his hourly pay of $11 for his position as mayor,” according to London.

Immediately prior to the hearing, Cummings offered up 117 pages of emails at the mayor’s rate, totaling $41.80, or alternatively, at a rate of 50 cents per page.

The Journal Inquirer rejected the offer and proceeded with the hearing, during which it emerged that McCoy had gathered only emails between himself and Bandecchi — not all emails to or from Bandecchi as had been requested.

London found that McCoy, “failed to prove that he performed ‘programming or formatting functions,’” as he claimed and instead, “engaged in ‘search and retrieval.’”

McCoy, “was not permitted to charge his private hourly rate or the hourly pay for the mayor’s position,” London wrote, and failed to provide the appropriate documents in response to the April 14 request.

The town has contested the issue since Apel took over, and Burke has asked the Journal Inquirer to withdraw its complaint several times since the election.

In an email on Nov. 14 to Burke, Cummings told him to resolve the matter as soon as possible, as “I would like to try to get that case settled before the FOIA hearing officer renders his decision.”

He also told Burke in the email to provide the emails that the Journal Inquirer already had rejected, and agreed with Burke that a reporter, “should not be allowed to just ‘rummage’ through files, either paper files or computer files.”

State law requires that public records must be provided upon request and anyone “shall have the right to inspect such records promptly.”

On Dec. 20, Burke mailed the 117 pages of emails to the Journal Inquirer and asked a reporter to “kindly forward a check,” for $58.50, adding that, “we look forward to your filing of a withdrawal of this matter.”

On Dec. 22, Burke filed a motion to re-open the hearing in an effort to have the matter dismissed, one day before London’s report was released.

Today, the Journal Inquirer filed an objection to Burke’s motion and asked for it to be denied.