Originally Posted - August 9, 2006

return home

Warren County Sheriff Larry Cleveland seems to have an aversion to the New York State Freedom of Information Law and governmental accountability.

In Florida, Marianne Pasha, the public information officer for the Pinellas County Sheriff's Office, seems to share that propensity to block the public's right to know how our government is being operated and how our tax dollars are being spent.

Although these sheriff's offices are charged with upholding the laws of their respective states, to serve and protect the people and support the state and Federal Constitutions, they are the law breakers themselves, abusing their positions to serve and protect themselves rather than the people.

"Democracies die behind closed doors. The First Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully, and accurately." Judge Damon Keith, U.S. Sixth Circuit Court of Appeals has written.

On the website for the Warren County Sheriff's Office is posted a notice indexed in red that the "Warren County Sheriff's Office DOES NOT accept E-Mail requests for information under the NYS Freedom of Information. Pursuant to a new law signed by Gov. George Pataki, that statement and policy of Cleveland is illegal.

In Florida, although Michael Schiavo is being paid over $68,000 a year to supposedly play Nurse Jane Fuzzy Wuzzy in the Pinellas County Jail, he's also traipsing around the country engaging in political activity, trying to torpedo each and every legislator who voted to give Terri Schiavo a chance to live, supporting a de novo review in the federal courts of the long manipulated state case which decreed the disabled woman's death because she had left no living will and couldn't speak for herself. The public has a right to know if Pinellas County taxpayers are paying Michael Schiavo to engage in such political activity and more importantly, if he's violating the federal Hatch Act under the auspices of Pinellas County Sheriff Jim Coats. The reasons why there has to be independent state, if not a federal investigation, of Michael Schiavo and the overall Schiavo case are multiplying.

Although a public records request was filed with the Pinellas County Sheriff's Office on July 17 for the payroll records of Michael Schiavo, so far Pasha and the public information office have failed to acknowledge the request or provide any of the records requested. What are they hiding and why are they not forthcoming with public records, records the public has a right to know?

On July 17, an electronic request was made to Pasha by The North Country Gazette seeking copies of the weekly time sheets/time cards for Schiavo for the period of March 1, 2006 through July 17 showing the number of hours worked per week and the number of hours paid. During mid-July, Schiavo was appearing in the federal offices of Congresswoman Marilyn Musgrave, waving around a letter that denounced her for voting in favor of the federal Terri's Law which had been drawn to give the incapacitated woman the same consideration for federal review of her case as convicted criminals receive, a civil habeas corpus.

During that same work week, Schiavo was also touting the Colorado candidacy of Peggy Lamm for Congress in District 7 and Angie Paccione in District 4.

He was supposedly employed by the Pinellas County Jail at that time. Was he engaging in political activity on his days off, or was he using leave time for which he was compensated by the taxpayers, to engage in partisan activity, positioning himself for his own venture into politics that was reported by various media organizations, also known as political posturing?

Although Pasha and the political, legal and judicial hierarchy in Florida may hope to shield the actions of Michael Schiavo from public review in an attempt to protect their own unethical and possibly illegal acts, past and present, whether they like it or not, the law requires public disclosure of the information.

Pasha and Pinellas County are engaged in the same type of tactics that governmental agencies practice nationwide in attempting to keep information from the public----stalling tactics and forcing the matter into the courts, trying to make it so cost prohibitive for the public to know that they will give up and go away. That's contrary to the legislative intent of the laws governing public access to governmental records.

As Diane Kennedy of the New York Publishers Association said while lobbying for changes in New York's FOIL, "Under current law, although the citizen may have every right to the records, and may be stonewalled by a recalcitrant agency in violation of the law, that citizen has no avenue through which to recoup his or her costs if forced to go to court". With the signing of the new bill in New York, both of those tactics have been torpedoed.

Earlier this year, Pasha and Pinellas County engaged in similar stonewalling tactics when NCG filed a request to obtain copies of Michael Schiavo's emails which are subject to public disclosure. Initially, Pasha tried to stonewall the issue totally, saying that no emails existed.

When a public records request was filed by NCG in April for copies of all emails received and sent by and Michael Schiavo from Jan. 1 through April 15 of last year, Pasha first tried to claim that upon checking Mr. Schiavo's email account, he hadn't received or sent any emails during that period.

Well, that was proven to be a lie which brings into question the reliability of any statement made by Pasha as the agency's public information officer.

Then Pasha stated that the sheriff's office didn't have the "system capability to search for the information requested". That statement was actually laughable. That admission seemed to indicate that the sheriff's office is violating the state's Public Records Law. Pasha says that unless emails set guidelines and establish policies or procedures, they are considered "transitory" and we are not required to maintain a permanent record of every email message".
http://www.northcountrygazette.org/articles/060406SchiavoEmails.html

Is Pasha in effect saying that the sheriff's department doesn't care how its employees use county computers and that if they don't have anything else to do, that sheriff's office employees can surf porn sites or play games or frequent chat rooms and message boards, maybe even use a county computer to try to hack websites and news organizations that asks too many questions?

The NCG filed an appeal of Pasha's determination, citing case law and opinions issued by the Florida Attorney General's office. Pasha then dictated that in order to receive copies of the emails that existed concerning Schiavo, some 321 pages she claimed (don't forget, she had first said none existed) that it would cost the NCG some $137 because the newspaper was being charged for a computer tech to retrieve the information. However, none of Michael Schiavo's personal emails were going to be provided, she said. FILE OF DUPLICATION COSTS

First of all, this statement confirms that Michael Schiavo is using county computers to conduct personal business while being paid by tax dollars and begs the question just what kind of personal business was he conducting----legal maneuvers with his lawyers engaged in the judicial homicide of his wife in name only, making deals with his book and movie agent, engaging in political activity under TerriPAC?

While Pasha has refused to disclose this information, legal experts have said that the public has a right to this information and several law firms have indicated an interest in filing legal action against Pasha and the Pinellas County Sheriff's Office in order to obtain that information.

After the NCG paid Pasha's extortion fee of $137, it was disturbing to learn that the newspaper had been forced to pay for numerous pages which contained no information or which contained a single line of a computer code. In some cases, duplicate or triplicate copies of the same page of non-information was provided, forcing NCG to pay for the same piece of paper two and three times. In legal terms, the Pinellas County Sheriff's office billing of the public records request actually constituted a fraud and to top it off, Pasha and Pinellas Sheriff Jim Coats forced NCG to pay nearly $9 in postage costs to receive this bundle of nondescript, unresponsive paper.

In New York State, and specifically Warren County, Larry Cleveland is engaged in the same type of games involving public information. Last week, Gov. George Pataki signed a bill into law that allows New Yorkers to use e-mail to submit requests under FOIL to request most government records which means even Cleveland will have to comply with the law. Cleveland's problem is that he strives on control and if he can't control things, he'll have a temper tantrum and plant his feet, abuse his position and refuse to comply.

Cleveland likes to control what the public knows about the sheriff's department, his rangers, department operations and its finances. Members of the news media who he can control such as The Post-Star are routinely given information that he wants dispensed without them having to submit a FOIL request while media that he can't control and are critical of departmental operations, such as The North Country Gazette are denied public information even with the submission of a formal request.n Larry Cleveland doesn't like accountability. For over 12 years, Cleveland has refused to provide NCG with news releases and propaganda that he freely dispenses to other media. In legal terms, that's an unconstitutional prior restraint, an attempt to manipulate the news and public information. That will be very shortly challenged in federal court as an unconstitutional practice on the part of Cleveland, obligating the taxpayers to pay to attempt to defend his unconstitutional practice and unlawful policy.

For nearly a dozen years, Cleveland has refused to provide any public information to The North Country Gazette after the newspaper, in its print edition, used FOIL to expose improper practices and operations within the department including the manipulation of arrest statistics and alleged falsification of reports submitted to the Warren County Board of Supervisors and state Department of Criminal Justice Services. Thereafter, Cleveland and his predecessor, Frederick Lamy, now one of three commissioners with the state Commission of Corrections, undertook retaliatory action under color of law against the publisher including false arrests, malicious prosecutions, unlawful imprisonments.

Cleveland claimed that he could withhold information because he untruthfully claimed that the publisher had failed to pay for past requests although he hadn't provided any copies. After the publisher paid his demanded extortion albeit proving that Cleveland was wrong and that in some cases he was trying to collect fees for copies of documents he had before stated in writing didn't exist, he still refused to provide the copies for which payment was made and still continued to refuse to respond to FOIL requests. Although legal action was instituted in Small Claims Court against Cleveland for an alleged theft of services, for accepting the payment made but not providing the services paid for, with the assistance of the Queensbury and Glens Falls City Courts, Cleveland thwarted that action, constituting a further denial of due process and continuing to engage in his practice of unequal treatment. Queensbury town justice Robert McNally, who had previously in private practice tried to defend Cleveland and his unconstitutional policy, initially refused to recuse himself and allegedly tried to prevent the case from being heard. Thus far, the tactics, abetted by Warren County Judge John S. Hall, have been successful, necessitating moving the matter to federal court under a prior restraint claim.

With the signing of the new legislation by Gov. Pataki, now Cleveland has to be even more accountable and Pataki is considering another bill that could even further strengthen the state's FOIL and public's right to know.

"Enabling the public to request records by means of e-mail and to require the government to respond by e-mail when they have the ability to do so will simply make the Freedom of Information Law must more usable to so many people", said Robert Freeman, executive director of the state Committee on Open Government.

By using e-mail, the cost of copying would be eliminated and public agencies such as the sheriff's department couldn't manipulate the law to make obtaining public information cost prohibitive and accessible only to those who could afford to pay the exorbitant costs imposed by officials such as Cleveland. The new law is also designed to expedite the release of public information.

In the case of Cleveland, when he didn't like how the NCG was using the information being obtained under FOIL, he changed the format of how the records were kept so instead of several months of records being kept on one page for which the copying cost was 25 cents, Cleveland changed the format of the records so that a year's records were kept by the month so that instead of costing 25 cents for a year, the cost became 12 times more or $3. When seeking arrest records of 10 officers and investigators, the cost mushroomed from $2.50 to $30.

Still sitting on Pataki's desk waiting approval is a proposal that would make New York public officials like Cleveland who intentionally thwart the open access laws legally responsible for their actions. If citizens, groups, businesses and yes, news organizations are denied access to public information for which there isn't a legal exemption, they could seek redress through the courts and those officials stymieing the disclosure would be forced to pay the legal costs of the person or organization. The law would also allow a court to force governmental and school districts to pay court costs if officials had "no reasonable basis for denying access" or failed to respond to a request within the time required by law.

According to Bob Freeman, guru of the state's access laws, it would be the most significant change in the law in years and a major step forward in making government accountable to the people. Naturally the various governmental organizations are opposing such disclosure.

As in seeking access to the court system, seeking access to public records is still the same old story of the have and have nots. Those with deep pockets can afford whatever arbitrary costs government imposes in an effort to make access to public records as difficult as possible. In all too many instances, officials who know that individuals or groups don't have the financial resources to sue to overturn their wrongful denial or withholding of records simply arbitrarily and capriciously play their games under FOIL.

That's about to end and even those who have been elected and appointed to serve the public will have to comply with open government laws.

Pataki needs to implement this long overdue reform in the state's open government laws and establish his legacy of advocating free and open government. If he fails to protect the rights of New Yorkers to be informed of how their government operates, then he has absolutely no right to ask voters to advance his aspirations for higher office. If he can't support and protect the rights of New Yorkers to an open government, for sure he'll be a disaster in federal government, already under fire for governmental secrecy and undue violations of the rights of the people.

Enabling the public's right to know is the right thing to do rather than thwarting it as Pasha and Cleveland. 8-08-06

© 2006 North Country Gazette