SUPREME COURT of the STATE OF NEW YORK COUNTY OF ERIE ---------------------------------------------------------------- MICHAEL P. KEARNS, Petitioner Petition to Compel Release of Records from OPWDD v. Index No. 2014 OFFICE OF PEOPLE WITH DEVELOPMENTAL DISABILITIES Respondent ---------------------------------------------------------------- To the Supreme Court of the State of New York: The Petition of Michael P. Kearns respectfully shows this Court: 1. I am a citizen and resident of the State of New York and reside in Buffalo, New York with an office at 1074 Union Road, West Seneca, New York. 2. I am a member of the Assembly of the State of New York, duly elected to represent the citizens of Assembly District 142 of the State of New York. 3. 510 Leydecker Road and 526 Leydecker Road are houses in a residential district within Assembly District 142. 4. Upon information and belief, on December 26, 2013, the New York State Office for People With Developmental Disabilities placed seven registered sex offenders in the Leydecker houses in what is commonly called a group home facility without any input or communication with local and state officials. 5. By letter dated February 19, 2014, on behalf of the residents of the district and in my capacity as an Assemblymember, I contacted OPWDD regarding a number of concerns held by the community regarding the placement of the sex offenders in the
residential neighborhood in West Seneca, New York. A copy of that letter is attached to this petition. 6. Over the ensuing five months my office was in contact with Gregory Roberts, Director of Intergovernmental Affairs of the OPWDD, without obtaining any of the records requested concerning the basis for the decision and the security of the facility. A consistent pattern of delay and silence emerged during our efforts to communicate with OPWDD and secure substantive compliance with our record requests. Also included were demands for records reflecting the level of risk presented by the seven sex offenders living in the Leydecker houses, and OPWDD policy applicable to the placement of the seven sex offenders. a. In February 2014, I received an email from Mr. Roberts that gave partial responses to the questions that I presented earlier that week. Mr. Roberts wrote, I am working to get you accurate information about the two houses specifically so you can be responsive to constituent inquiries. It is my understanding that this is a unique situation. Bill [Licata, Legislative Aide to Assemblyman Kearns] mentioned that you were interested in the interaction with state procedures and the local ordinances regarding SORA registrants as well as why there is a concentration of individuals at one location. I can say that OPWDD has been in touch with West Seneca police department. Until I get the specifics, I hope this will help you communicate, with your constituents. A copy is attached as Exhibit b. On April 16, 2014 I received a call from Mr. Roberts in which he gave some answers to several of the February 19, 2014 questions. I took those answers to a
community meeting in West Seneca and delivered that information to the constituents who attended. Several questions and concerns arose at the meeting. c. On April 22, 2014, my office sent a letter to the Commissioner of OPWDD Laurie Kelley asking for answers to twelve enumerated questions, some with sub-parts, reflecting concerns of constituents and my office. 7. After numerous verbal assurances from Mr. Gregory Roberts of the OPWDD that information would be forthcoming regarding the April 22, 2014 letter, I consulted Robert Freeman with the Committee on Open Government to see what appropriate steps should be taken under the Freedom of Information Act and the Public Officers Law to obtain this public policy information. 8. On July 23, 2014, I submitted a formal FOIL request for the records with the twelve enumerated questions of April 22, 2014. The pattern of delay and silence continued. OPWDD did not meet the FOIL deadline of responding within five days of the demand, instead responding late and seeking to charge a state agent for copies. OPWDD sought to extend its time to respond to August 28, 2014, but missed that deadline also. In the absence of a timely written response to the FOIL request, on September 9, 2014 my office submitted an appeal of the de facto denial. Again, OPWDD missed its deadline to respond, contacting my office by email on September 23, 2014, four days after its deadline to respond had passed. This provides little confidence in the substance of the responses regarding the record requests. A copy of the FOIL request is attached as Exhibit A. 9. By letter dated September 24, 2014, OPWDD identified the FOIL request as #14-0099 and asserted privilege over various documents pursuant to Mental Hygiene
Law Sec. 33.13. Request number 5 was for information regarding the information upon which the decision was made to release the all the sex offenders from the Monroe County facility on the same day. A copy of the September 24, 2014 letter from Joyce Scialdone, Records Access Officer, OPWDD, is attached as Exhibit B. 10. Also, by letter dated September 24, 2014, the appeal was determined to be moot, despite assertion of a blanket privilege based on Mental Hygiene Law Sec. 33.13. A copy of the September 24, 2014 letter of Roger Bearden, Deputy commissioner and General counsel, FOIL Appeals Officer, OPWDD, is attached as Exhibit C. 11. In its letters OPWDD indicated it was searching for records responsive to requests 2, 3, 7, 11, and 12, with an assurance of an update on October 13, 2014. OPWDD did not state why such records were not readily obtainable or why there would be yet another delay in responding to requests of which it had been aware since at least April 2014. 12. Because a petitioner under CPLR Article 78 has a limited amount of time in which to commence an action based upon a denial such as that imposed by OPWDD, and it is unlikely that a complete determination of the FOIL request will be adequately addressed given the pattern of silence and delay by the OPWDD, this petition has been submitted seeking judicial intervention. 13. The demands for information under FOIL are addressed toward the fundamental process by which OPWDD has placed seven sex offenders in a residential neighborhood without informing or coordinating with local or state officials. This decision has potentially imperiled the residents and neighbors of the Leydecker Houses without providing adequate substantiation for the reasonableness of the decision.
14. Despite the finding that the appeal is moot, I respectfully request that this court consider the appeal far from moot given that the denial for the information pertaining to the care treatment and movement of individuals served by OPWDD is not embraced by Mental Hygiene Law Sec. 33.13 unless it is the record associated with diagnosis and treatment. The movement of individuals and assigning of sexual offenders cannot be bootstrapped into Mental Hygiene Law simply because their criminal behavior is linked to a mental condition. The issue of security and safety of the residents in the neighborhood of the Leydecker Houses remains a State interest. Those behaviors known to have been exhibited by the sexual offenders do not enjoy a privilege simply because they are the product of a diagnosed condition. 15. This matter is of public interest and a review of the requested records should be subject to an in camera review by this court to determine to what extent any privilege does exists pursuant to Mental Hygiene Law Sec. 33.13 and Public Officers Law Article 6. 16. It is requested that this court maintain jurisdiction over this matter pending the resolution of the remaining demands for records requested and identified in the FOIL request, including parts 2, 3, 7, 11, and 12, and for which the OPWDD has indicated it will conduct a continuing search, and for the balance of the FOIL request should it be determined that OPWDD does have an obligation to maintain such records. Wherefore, I respectfully request judicial review of respondent s refusal to provide my office and the residents of Assembly district 142 with copies of the public documents and records relating to the placement of sexual offenders at 510 Leydecker
Road and 526 Leydecker Road in the Town of West Seneca, New York, and ask this court to compel OPWDD to provide the requested documents or in the alternative to order OPWDD to submit the records to the court for an in camera review and determination of whether the documents are subject to FOIL disclosure, and for such other relief to which this court deems just and proper to Petitioner. Dated: September 26, 2014 Buffalo, New York Michael P. Kearns