BY ADAM ATKINSON
North Country This Week

POTSDAM — Potsdam Village has denied a Freedom of Information Law request from North Country This Week seeking to obtain the amount paid out in a legal settlement with toilet garden owner Hank Robar.

The newspaper is appealing that decision.

The newspaper has been contacted by several village residents asking why the information has not been published as the settlement is ultimately paid with tax funding. Even if the payout is covered by insurance policies, such settlements could impact premiums in the future.

The village denied the initial request on grounds that it was “confidential.” 

However, historically such denials have been deemed inappropriate by courts and the New York State Committee on Open Government.

It is unclear if the decision to deny North Country This Week’s FOIL request was reviewed by the village attorney or made unilaterally by the clerk.

NCTW filed the appeal after conferring with Kristin O’Neill, assistant director with the New York State Committee on Open Government, who believes the village has no grounds to withhold the information.

According to documents filed with the U.S. District Court’s Northern District in New York, attorneys for Robar and the village both signed off in court to a Confidentiality Agreement for the Conduct of Mediation on April 20 over Robar’s civil suit versus the municipality. Robar was suing the village over violations to his right to freedom of expression through his various “toilet gardens” positioned throughout the village, which the municipality had attempted to purge through code enforcement actions.

The matter was eventually settled by mediation outside of court. The agreement between the two parties apparently confers confidentiality for the conduct of mediation, and perhaps not necessarily with the final settlement. O’Neill said she agreed with that assessment.

“I would certainly appeal based on the grounds that an agency, such as the Village, cannot limit the public’s right to access records under the Freedom of Information Law by way of a contract or confidentiality agreement.  As I mentioned, I would never advise a municipality to violate a court order, however, absent such an order, in our view, there would be no ground for denial of access under FOIL,” O’Neill said in an email to North Country This Week.

O’Neill said the Committee on Open Government refrains from preparing new advisory opinions when previous opinions exist relating to the same legal issue. She verified that there were several that had already been issued and refers to a 2007 opinion on a settlement agreement between the City of Newburgh and a former employee where confidentiality was used as a reason to keep secret the settlement amount. That advisory opinion can be read online at https://docs.dos.ny.gov/coog/ftext/f16721.htm .

That opinion states, in part, that “there are several decisions rendered under the New York Freedom of Information Law indicating that settlement agreements are accessible to the public, and that promises or agreements regarding confidentiality are irrelevant when determining public rights of access.”

The opinion also states:

“The agreement to conceal the terms of this settlement is contrary to the FOIL unless there is a specific exemption from disclosure. Without one, the agreement is invalid insofar as restricting the right of the public to access.”

And, “Several controversies have arisen in which agreements or settlements have included provisions requiring confidentiality. Those kinds of agreements have uniformly been struck down and found to be inconsistent with the Freedom of Information Law.”

According to Freedom of Information Law’s appeal process, the village is required to respond to NCTW’s appeal within 10 business days of its receipt. If the records are denied on appeal, the village is required under law to explain the reasons for the denial fully in writing.

The village appeals officer is Village Mayor Ron Tischler. At presstime, no response has been received.