One passage in an October 15, 2023 story in The Buffalo News, City of Buffalo rejects News' request for public records about potential lawsuits, took me by surprise. Out of 378 lawsuits brought or pending against the City of Buffalo between January and August of 2023, the newspaper singled out just one case for which it named a litigant—me.
The 378 notices of claim filed against the city since Jan. 1 that are listed in the spreadsheet include allegations of sewer backups, vehicle damages, drinking water issues, a wrongful conviction, a property that was improperly demolished and more than three dozen property damage claims, many of them due to trees falling in the 2022 Christmas weekend blizzard.
Also among the claims – a case involving the city’s denial of a FOIL request for records by a private citizen. The citizen, Nathan Feist, ultimately prevailed by taking his case to state Supreme Court, where Judge Emilio Colaiacovo in July ordered the city to disclose the records to Feist within five days.
Technically, the five-day order wasn’t handed down until September. Justice Colaiacovo ruled from the bench in July that the City of Buffalo must disclose the records I sought, and the city prevaricated concerning the court’s expectation that the city submit a draft order for the judge to sign. Seven weeks later, I submitted the draft order myself, which the court issued on September 22, after a week of attempting in vain to learn if the city had any objection. A city attorney sent me copies of twenty-five e-mails six days later.
The process began over one year prior, when I submitted a request under New York State’s Freedom of Information Law (FOIL) for records related to a trip to Walt Disney World which WIVB News 4 Buffalo reported the Buffalo Police Department was awarding to a Buffalo family because this family is “an example of a great family.” This reporting brought to mind several questions: What makes a family great? How does the police department determine a family’s greatness? How did this family stand out among other great families to the degree that the police department decided to send this family on all-expenses-paid trip to Disney World?
To my disappointment, the city’s response to my FOIL request answered none of these questions. Instead, it claimed that its records search “revealed only inter-agency materials and agreements that are exempt from disclosure.” However, I did not request any inter-agency materials, and basic materials that I did request, including financial records and correspondence between the police department and the family that the department selected, do not categorically fall under any exemption to disclosure.
So, I wrote to the agency that issues advisory opinions on FOIL, the New York State Committee on Open Government. The committee advised that I ask the police department for a certification allowed by FOIL to establish which records, if any, weren’t revealed by the records search, leaving the remaining records as those the department claimed to be “inter-agency materials and agreements.”
After my request for this certification went unanswered for two weeks, I called the police department’s FOIL division. The officer who answered my call said nothing more would be provided, and when I explained that FOIL requires agencies to certify if records are not found, the officer hung up. So, I appealed the department’s determination to the city’s law department.
In the city’s response denying my appeal, the police department’s Disney World trip awarded for being a great family transformed into what the city now referred to as “a raffle of a trip” that was “voluntarily organized and privately funded.” Nevertheless, the factual materials which the police department admitted to possessing are public records, so I took the matter to court.
In response to my lawsuit, the city continued to insist that the trip was a raffle, testifying that the department “was aware of some internal emails spreading the word about a raffle trip to Walt Disney World.” After I pointed out that such e-mails are not subject to the only statutory exemption to disclosure cited by the city, Justice Colaiacovo asked the city to send him the records so he could inspect them himself—a so-called in camera review. Three and a half months later, the city sent him a collection of e-mails that an IT contractor determined were related to the Disney World trip and which the judge then ruled should be made public once the city redacts personal information, such as the names of the great family’s children.
The e-mails that the city eventually provided do not contain such redactions and reveal that the trip was not a raffle, contrary to what city attorneys stated in sworn testimony. Rather, a Buffalo Police chief e-mailed his mother (a substitute teacher at the Charter School of Inquiry) at her work address and asked for help selecting a family, which her school did less than an hour and half later.
“I talked to Mr. Rembert who said it would amazing to be selected for the Disney trip,” wrote Associate Principal Joseph Peek, 59 minutes after receiving the police chief’s forwarded e-mail.
Four months later, the police chief told an inquiring Mr. Rembert that the deputy commissioner of police was still waiting for approval from the city’s law department. “I apologize for the wait time but unfortunately we have to wait for clearance on their end,” wrote the police chief.
The records disclosed in response to the court order do not include any materials submitted for approval. Shortly I after I received the e-mail trove, I asked the city attorney assigned to the case if there are any records of the law department issuing the approval. “There are not,” he replied.
According to the last e-mail from the police department, the trip was paid for “using the funds raised by the Buffalo Police officers football pool.” Offline sports betting in New York State is only legal at four casinos operated by Indian nations, and knowingly collecting over $500 dollars a day in proceeds from a gambling ring is a felony pursuant to New York State Penal Code Section 225.10, punishable by up to four years in prison and five years’ probation.
Earlier this year, a handful of New York State Assembly members introduced bills to amend the state constitution and pass a law to legalize football pools for restaurants and bars, which the assembly may vote on next year.