STATE OF NEW YORK

SUPREME COURT
COUNTY OF MONROE
_________________________________________
ROCHESTER DEMOCRAT AND CHRONICLE,
a division of GANNETT CO., INC.,
Petitioner,

VERIFIED PETITION

- vs -

Index No. _________

TOWN OF IRONDEQUOIT,
Respondent.
_________________________________________
Petitioner Rochester Democrat and Chronicle, a division of Gannett Co.,
Inc., by and through its attorneys The Wolford Law Firm

LLP,

alleges, upon

information and belief, as follows:

PARTIES
1.

Petitioner Rochester Democrat and Chronicle is a division of Gannett

Co., Inc., a corporation incorporated under the laws of the State of Delaware.
Petitioner is the publisher of the Rochester Democrat and Chronicle.

The

Petitioner is hereinafter referred to as Petitioner or the D&C.

2.

Respondent Town of Irondequoit (hereinafter the Town) is a

municipal corporation duly organized and existing under the laws of the State of
New York.
JURISDICTION AND VENUE
3.

Petitioner brings this proceeding pursuant to Article 78 of the Civil

Practice Law and Rules and Public Officers Law 89(4), to challenge

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Respondents unlawful denials of Petitioners requests pursuant to the New York
State Freedom of Information Law, Public Officers Law 84, et seq. (hereinafter
FOIL) for certain government records which are subject to disclosure under
FOIL.
4.

This proceeding is brought in Monroe County within the Seventh

Judicial District pursuant to the provisions of Section 506 of the New York Civil
Practice Law and Rules.
FACTS
5.

On October 28, 2015, D&C reporter Meaghan McDermott submitted

a request pursuant to FOIL to the Town, seeking any list or other record kept by
the town that reflects the addresses of vacant or abandoned properties
(hereinafter FOIL Request). A copy of the FOIL Request is attached hereto as
part of Exhibit A.
6.

The FOIL Request was sent via email to Town Clerk Barbara Genier,

a Records Access Officer pursuant to Irondequoit Town Law 175-2(B).

7.

On October 29, 2015, Town Clerk Barbara Genier forwarded the

FOIL Request to Clerk Catherine Semrau [Exhibit A, p. 1]. A copy of this email is
attached hereto as part of Exhibit A.
8.

On November 24, 2015, the FOIL Request was denied in a one-

sentence email from Ms. Semrau, which read: Per Kerry Ivers, this FOIL has been
denied b/c if disclosed could endanger the life or safety of any person [Exhibit A,

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p. 1]. Kerry Ivers is the Towns Planning and Zoning Administrator. A copy of this
email is attached hereto as part of Exhibit A.

9.

Notwithstanding Town Code Section 175(C), which requires records

officers, such as the Town Clerk, to assure that agency personnel advise the
requester of the right to appeal, setting forth the name, title, business address and
telephone of persons to whom the appeal may be taken, no such information was
provided.
10.

Meaghan McDermott requested information regarding the Towns

appeal officer in the initial FOIL Request and in an email response to Clerk
Catherine Semrau, dated November 24, 2015. A copy of the initial FOIL Request
and the November 24, 2015 email are attached hereto as part of Exhibit A.
11.

Catherine Semrau provided information regarding the Towns appeal

officer via email on December 1, 2015. A copy of this email is attached hereto as
part of Exhibit A.
12.

Meaghan McDermott appealed the denial of the FOIL Request on

December 21, 2015, noting that mere [s]peculation regarding the impact of
disclosing these records is insufficient to support your denial, and the burden of
proof to show that disclosing the already not-secret addresses of vacant properties
in the town could endanger the life or safety of any person rests with your
agency. A copy of this appeal is attached hereto as Exhibit B.

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13.

On January 6, 2016, the Town denied the appeal, citing Public

Officers Law 87(2)(f). A copy of this denial letter is attached hereto as Exhibit C.
14.

The Towns denial stated: Disclosure of the addresses of all known

vacant properties within the Town of Irondequoit increases the probability of a

criminal act occurring and could endanger the life and safety of those that
neighbor vacant properties . . . Disclosure of vacant property locations would
identify these dwellings for potential criminal activity in 2015 alone, the
Irondequoit Police Department conducted thirty-four (34) burglary investigations
that centered on vacant and unattended properties.

As such, your appeal is

denied according to Public Officers Law 87(2)(f) [Exhibit C].

15.

On May 21, 2015, the Town Board adopted the Vacant and Unsafe

Properties Law of the Town of Irondequoit, Town Code Section 104-1, et seq. This
legislation addressed zombie properties, and took effect on July 1, 2015 [Exhibit
D, p. 3]. A copy of the relevant pages of the May 21, 2015 Regular Town Board
Meeting Minutes, reflecting the adoption of the legislation, is attached hereto as
Exhibit D. A copy of the February 19, 2015 Regular Town Board Meeting Minutes,
containing public hearing input on this legislation, is attached hereto as Exhibit E.
16.

Pursuant to Town Code Section 104-4(A), the owner of a vacant

building must register with the Towns Code enforcement Official 30 days after
any building becomes a vacation building, or . . . 10 days after being notified by a
Code Enforcement Official of the requirement to register.

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17.

According to the Building and Development section of the Towns

website [http://www.irondequoit.org/town-departments/building-development], by
Friday, August 14, 2015, all vacant properties in the Town of Irondequoit must be
registered with the Town pursuant to Town Code Section 104-4(A). A copy of the
materials available when accessing the Vacant Property Registry Application &
Info. link on the Towns website [http://www.irondequoit.org/government/townboard/agendas-minutes/category/18-community-development-forms?download
=359:vacant-property-registry-application],

including

the

Vacant

Property

Registration Form, are attached hereto as Exhibit F.

18.

The Town did not provide any documents in response to the FOIL

Request, including any documents, redacted or otherwise, reflecting lists or

records relating to the Vacant and Unsafe Properties Law or the Vacant Property
Registration Form.
19.

The Towns November 24, 2015 denial of the FOIL Request did not

provide a particularized and specific justification for its refusal to disclose the
requested documents.
20.

The Towns January 6, 2016 denial of the appeal of the FOIL

Request did not provide a particularized and specific justification for its refusal to
disclose the requested documents.
21.

The Towns denial of the appeal of the FOIL Request appears to be

based on the assumption that the disclosure of the location of vacant properties
would identify these dwellings for potential criminal activity [Exhibit C].

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22.

This assumption ignores the public nature of documents reflecting

the status of property and the public visibility of vacant or abandoned property.
23.

For example, by conducting a search on the website Zillow.com,

selecting for foreclosures, foreclosed, and pre-foreclosure in Irondequoit, New

York, a large list of homes is revealed, complete with pinpoints on a map and the
ability to click through to a map and obtain directions to the property.
24.

Using other publically available information, including the Monroe

County Real Property Portal, additional information regarding the property can be
obtained. For example, by selecting the Pay Property Tax button for a specific
piece of property, the owner of the property is revealed. If a property is bank
owned, the name of the financial institution will be listed.
25.

Other real property information, including the filing of notices of

pendency related to mortgage foreclosures, are readily searchable via the Monroe
County Clerks Office online records database. Indeed, a searcher can obtain a
list of all documents filed as notice of pendency mortgage foreclosure within a
particular time frame. The searcher can then view or print a list of search results,
which includes the property address.
26.

Moreover, the fact that a property is vacant or abandoned can also

be readily observable [see, e.g., Exhibit D, p. 6, noting the existence of clearly

vacant homes].
AS AND FOR A FIRST CAUSE OF ACTION

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27.

Petitioner repeats and realleges each and every allegation contained

in paragraphs 1 through 26 above as though fully set forth herein.

28.

The Towns initial denial of Petitioners FOIL Request, and its

subsequent denial of Petitioners appeal, were unlawful and violated the Towns
duty to make its government records available for inspection and copying under
Public Officers Law 87.
29.

The Towns initial denial of the FOIL Request, and its subsequent

denial of Petitioners appeal, were unlawful because the denials were conclusory,
failed to identify a valid statutory exemption precluding disclosure of the requested
documents, and failed to make a particularized showing that the records requested
fell under any exemption.
30.

The Towns initial denial of the FOIL Request, purportedly based

upon the exemption set forth in Public Officers Law 87(2)(f), was unlawful. The
Town cannot establish that the records, if disclosed, could endanger the life or
safety of any person.
31.

The Towns denial of Petitioners FOIL Request was illegal, and must

be annulled.
AS AND FOR A SECOND CAUSE OF ACTION
32.

Petitioner repeats and realleges each and every allegation contained

in paragraphs 1 through 31 above as though fully set forth herein.

33.

Pursuant to Public Officers Law 89(4)(c), Petitioner is entitled to

reasonable attorneys fees and other litigation costs incurred by Petitioner in this

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proceeding because the Town: (1) failed to respond to Petitioners FOIL Request
within the statutory time, Public Officers Law 89(4)(c)(ii); and (2) had no
reasonable basis for denying access to the records requested by Petitioner, Public
Officers Law 89(4)(c)(i).
34.

The FOIL Request was properly submitted to the Town Clerk on

October 28, 2015.

35.

Pursuant to Public Officers Law 89(3)(a), within five days of the

receipt of the FOIL Request, the Town was required to either make the records
available, deny the request in writing, or acknowledge the receipt of the request in
writing and provide a statement of the approximate date, which shall be
reasonable under the circumstances of the request, when such request will be
granted or denied.
36.

The Town did not comply with Public Officers Law 89(3)(a).

Instead, twenty-seven (27) days later, on November 24, 2015, the FOIL Request
was denied in a one-sentence email.
37.

The Towns failure to respond to the FOIL Request within the time

permitted by Public Officers Law 89(3)(a) was unlawful, and entitles Petitioner to
an award of attorneys fees and litigation costs. Public Officers Law 89(4)(c)(ii).
38.

Further, Petitioner should be awarded attorneys fees and litigation

costs on the additional and separate ground that the Town had no reasonable
basis for denying Petitioners FOIL Request.

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39.

Public Officers Law 87(2)(f), which exempts from disclosure only

records that if disclosed could endanger the life or safety of any person is clearly
inapplicable to the records sought in Petitioners FOIL Request.
40.

Therefore, Petitioner is entitled to recover from the County its

reasonable attorneys fees and other litigation costs incurred by Petitioner in this
proceeding. Public Officers Law 89(4)(c)(i) & (ii).
WHEREFORE, Petitioner respectfully requests that the Court:
1.

Review the determination of the Town which denied Petitioners FOIL

Request;
2.

Reverse and annul the determinations of the Town which denied

Petitioners FOIL Request, and issue an Order requiring the Town to make
available for inspection and copying all records encompassed by Petitioners FOIL
Request;
3.

Assess Petitioners reasonable attorneys fees and other litigation

costs against the Town pursuant to Public Officers Law 89(4)(c)(i), inasmuch as
the Town had no reasonable basis for denying access to the requested records;
4.

Assess Petitioners reasonable attorneys fees and other litigation

costs against the Town, pursuant to Public Officers Law 89(4)(c)(ii), inasmuch as
the Town failed to respond to Petitioners FOIL Request within the statutory
timeframe set forth in Public Officers Law 89(3)(a); and
5.

Grant such other relief as may be just and equitable.

Dated: March 16, 2016

________________________________

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Sarah Snyder Merkel, Esq.
THE WOLFORD LAW FIRM LLP
Attorneys for Petitioner
600 Reynolds Arcade Building
16 East Main Street
Rochester, New York 14614
Telephone: (585) 325-8000