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Foiled Again: Jeremy Zellner, Workin' 9 to 5

Based on a series of tips, Artvoice filed a Freedom of Information Law request on October 30 with clerk and records access officer Robert Graber at the Erie County Legislature, asking for time sheet records dating back to January 1, 2012 for Jeremy Zellner and Jerome Schad. We also requested records of the swipe cards used to enter various parts of old Erie County hall, where the legislature is located. Zellner is the chief of staff for the Legislature, and also the new chairman of the Erie County Democratic Party; Schad is a lawyer for the legislature.

On Monday, December 3, I received an email from Graber which reads as follows:

This letter serves as a final response to your request dated October 30, 2012.

Your request seeks the following:

l Copies of, or access to, time sheet records dating back to January 1, 2012 for Jeremy Zellner and Jerome Schad, employees of the Legislature;

l Mr. Zellner and Mr. Schad’s in/out swipe card records for the Rath Building garage, and any swipe card accessible areas within 92 Franklin Street, dating back to January 1, 2012.

Concerning time sheets referenced above, the Legislature does maintain said records. Concerning your request for swipe card records, the Legislature does not maintain such records.

The time sheet records are available at the Legislature, therefore, please contact me concerning arranging a date for access to, or making copies, of these records. Additionally, as indicated in your request to “please contact me before duplicating the records,” should the fee for copying exceed $10. The total for this request is $87.75, should you wish copies of these time sheets.

Graber copied Michael Siragusa, Erie County Attorney, on this response.

I sent an email to Graber requesting an opportunity to inspect the public time sheet records on Tuesday. He then explained that I wouldn’t be able to look at the time sheet records.

Why not? Because, he explained, “the lawyers” have said that all 300+ time sheets would have to be redacted to obscure the names of the other nine members of the legislature staff that appear on the daily sign-in sheets.

He also pointed out that since my initial FOIL request indicated that if the cost of copying the materials exceeded $10, I wanted to be notified before the copies were made. So there were no copies ready yet.

I explained that I just wanted to examine the original documents, as the Freedom of Information Law allows. No dice. The lawyers said they would have to be redacted before I could even look at them. I could look at Schad’s, because he only turns in one time sheet every two-week pay period, and there are no other names on those sheets.

I consulted with a few people familiar with FOIL, and was told the county’s stance was nonsense. I left a message for and sent an email to Robert Freeman, executive director of New York’s Committee on Open Government, explaining the situation and copying my email FOIL request and the subsequent reply. Then I printed a copy of section 87 of the state statute, which applies to access to agency records, and headed down to county hall.

Graber met me at the reception desk and handed me Schad’s time sheets. We went into a small office, where I explained that the county’s stance was incorrect, and that I was about to appeal the denial of access, and that if that appeal was denied I would sue them for access, they would certainly lose, and the Legislature would come off looking foolish for fighting to withhold public records from the public.

Graber said he would check with the lawyers and left the room. He returned to say that he was still being told the other names would have to be redacted. I urged him to check again because their behavior was unbecoming of public officials. Finally, he came back and told me I could look at Zellner’s time sheets. Turns out a lawyer for the county, Jeremy Toth, had said I deserved access.

Which lawyer had been telling Graber otherwise? Jerome Schad.

Since it was a busy day at the Legislature, with the budget vote and all, I only briefly looked over the time sheets and decided to leave without requesting copies. One thing I noticed, however, is that Zellner appears to be signing in and out more or less 9am-5pm in the month of November. Which is odd, because back in September he explained to the Buffalo News that, should he be named Erie County Democratic chairman, he would try to work 7am-3pm for the Legislature, then put in time at Democratic headquarters in the afternoon and on weekends.

Zellner, who I was told was at the Legislature when I called asking him to explain how he fulfilled both positions, would not accept my call, and did not return the call before deadline.

Freeman, on the other hand, did call back on Tuesday. He said that he heard my phone message and read my email. He joked that he hoped I was going to write that the lawyer who was trying to deny me access to records was “an idiot.” More seriously, he offered many examples to show that such records are absolutely subject to FOIL.

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