For years, Town Supervisor Paul Feiner has been using the Town’s private email list, which contains an estimated 2,500 subscribers, to promote himself and vilify his critics, while at the same time maintaining tight-fisted control so that no one else, even those he personally attacks, could ever use the list to respond.

It’s a strategy that many say has served Mr. Feiner well because most of the problems that have plagued his long tenure in office have gone unreported by a local media that doesn’t have the resources to cover Greenburgh and even when covered, his base of support among his email subscribers, particularly those who live in areas not served by any local media, rarely learn of it anyway.

Now one Greenburgh resident has fought back and won.

Dorrine Livson, the president of the Worthington Woodlands Civic Association in unincorporated Greenburgh, this week won a court ruling giving her access to the Town’s list of 2,500 email subscribers — and in keeping with the Town’s position that adverse court rulings – indeed any information critical of Mr. Feiner – never be disclosed to residents on the Town’s mailing list, the Town made no mention of the ruling, which was issued Wednesday, November 5.

In ruling for Ms. Livson, State Supreme Court Justice Barry Warhit reversed the Town’s denial of a Freedom of Information Law request Ms. Livson had made earlier this year for an electronic copy of what is known as the “GB list.”

The town did “not cite to any controlling statute which bars disclosure of the gblist or the names and email addresses of its subscribers, nor is this court aware of any such applicable and controlling statute,” the court stated. Accordingly, the court stated that “the petition is granted to the limited extent that [the Town, the Town Clerk and the Town Board] are directed to disclose, in electronic form, the names and email addresses of subscribers of the gblist upon the condition that Petitioner shall not reproduce, redistribute or circulate the gblst or use the information contained therein for solicitation, fund-raising or any commercial purpose.”

In February 2014, Ms. Livson, on behalf of her civic association, submitted a FOIL request for production of the gblist in electronic format. She accompanied her application with a 2008 decision rendered by the Committee on Open Government to the effect that such email addresses are town records that must be disclosed.
By email dated March 3, 2014, Town Clerk Judith Beville denied the request on grounds that “[t]here is neither a print or extract function on the software that can reasonably create a list of email addresses.”

Ms. Beville’s representation turned out to be false.

Ms. Livson contacted Cit-e-Net, which is the private vendor that maintains the list for the Town. She learned that, upon the Town’s request, Cit-e-Net could and would prepare a report containing the requested information.

Armed with that additional information from Cit-e-Net, Ms. Livson appealed the denial of her request to the Town Board. At a town board work session to consider Ms. Livson’s appeal, Town Attorney Tiim Lewis said that while he was aware of the decision by the Committee on Open Government which concluded that disclosure of personal email addresses is permissible, the Town did not recommend disclosure based upon certain court rulings and his personal opinion that when citizens subscribed to the gblist, they did so with the expectation that their email addresses would not be disclosed.

Then, in a formal ruling on March 19, 2014, Mr. Lewis denied Ms. Livson’s appeal stating that “we believe the courts in New York State disagree with the Committee on Open Government’s view.” He then cited two court cases which he thought stood for the position that the Town could refuse to disclose the list.

Justice Warhit, however, found that the cases Mr. Lewis cited did not address the issue of whether email lists were private information and were therefore “not on point,” adding that the Town “failed to provide an explanation of [its] cinclusion that the above cited cases are controlling under the circumstances” and, moreover, the Town “did not identify any particular concern or perceived risk to be anticipated by disclosure of the gblist.”

During the litigation, however, the Town expressed concern that release of the gblist would pose “serious safety issues,” subject those addressees to spamming, harassment, and possible phishing schemes” and permit the identification of members of the public, including those in high profile jobs.

The court rejected these concerns because, while they “may be sincere,” they were not invoked as a basis for denying Ms. Livson’s request and the Court can only address the legal arguments that were raised as a basis for the denial.

The Town has until December 8, 2014 to file a notice of appeal of the court’s ruling. If it does, it is likely that the Town will attempt to withhold disclosure of the gblist until after the appeal is decided.

Ms. Livson was represented pro bono in the case by the law firm of Keane & Beane, which successfully prosecuted the Fortress Bible case against the Town. In that case, a federal court found Mr. Feiner had violated the constitutional rights of a church, resulting in a $6.5 million settlement – believed to be largest damage settlement for religious discrimination against a municipality in the entire country.

A copy of the court ruling is attached.

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