North Tonawanda Police Department: "What happened to the evidence?"

UPDATE: 12 September 2008 8:42 am EST

 It may never be learned what happened to the photographic evidence taken by North Tonawanda Police Department Detectives during the alleged bomb threats occurring in October 2005, at North Tonawanda High School, located in North Tonawanda, New York.  The evidence alleged in NTPD Police reports to be photographs of threatening handwriting on school walls.

It was learned however, among other matters, that Principal James V. Fisher, North Tonawanda High School, took no action as required by law in the reporting of at least "3 or 4" bomb threats occurring at North Tonawanda High School during the 2005-2006 school year (Sworn Affidavit of Principal James V. Fisher, before the New York State Division of Human Rights states that " a series of 6 or 7 bomb threats" had occurred during this period), including the failure to notify local law enforcement and under-reporting violent incidents to New York State Education Department for this period. 

It was also learned that North Tonawanda Police Department has, in fact, a Custodian of Records, Maureen B. Balling, who issued the following Certification as a result of the advisory opinion of NYS Committee on Open Government.

"...Maureen B. Balling, being duly sworn, states that she is the custodian of records for the North Tonawanda Police Department. I hereby certify that all records requested by Ms. Rhonda J. Mangus in her December 21, 2007 FOIL request that are in the possession of the North Tonawanda Police Department have been provided. This certification is based upon my own knowledge and my due diligent search for the aforementioned records. ..."

End of Update

UPDATE: 26 August 1:14 am EST

This story was formerly entitled, "Advisory Opinion Sought From Committee on Open Government" and included added material related to a second unrelated FOIL request to the Office of NYS Comptroller DiNapoli for an internal audit of the City of North Tonawanda School District, North Tonawanda, NY that has been deleted from the original story (given its own story headline here: http://www.nowpublic.com/world/nys-comptroller-dinapoli-where-audit).

Excerpts below from New York State Committee on Open Government in its response dated July 25, 2008, through its Assistant Director Camille S. Jobin-Davis, to a formal request for an Advisory Opinion for the reasons below related to the City of North Tonawanda, Honorable Mayor Soos, and City of North Tonawanda Police Department confirms:

"It is emphasized government agencies and their employees cannot destroy records at will. The "Local Government Records Law", Article 57-A of the Arts and Cultural Affairs Law, [Commissioner of Education Rules & Regulations] deals with the management, custody, retention and disposal of records by local governments."

"With respect to the retention and disposal of records, Section 57.25 of the Arts and Cultural Affairs Law states in relevant part that:

"2. No local officer shall destroy, sell or otherwise dispose of any public record without the consent of the commissioner of education. The commissioner of education shall, after consultation with other state agencies and with local government officers, determine the minimum length of time that records need to be retained. Such commissioner is authorized to develop, adopt by regulation, issue and distribute to local governments retention and disposal schedules establishing minimum retention periods..."

"Further, when an agency indicates that it does not maintain or cannot locate a record, an applicant for the record may seek a certification to that effect. Section 89(3) of the Freedom of Information Law provides in part that, in such a situation, on request, an agency "shall certify that it does not have possession of such record or that such record cannot be found after diligent search." It is emphasized that when a certification is requested, an agency "shall" prepare the certification; it is obliged to do so."

On August 7, 2008, correspondence was sent to North Tonawanda City Attorney Shawn Nickerson requesting Certification "...that City of North Tonawanda Police Department does not have possession of records (photographs), or that such record (photographs) cannot be found after diligent search."  To date, City Attorney Nickerson has not responded to this request for Certification.  Both City Attorney Nickerson and North Tonawanda Police Department Chief of Police Randy Szukala were copied on the correspondence from NYS Committee on Open Government Assistant Director Jobin-Davis.

An appeal was also directed to City of North Tonawanda's Honorable Mayor Soos in February 2008; each member of the Common Council was copied. Neither a response to the request for Appeal nor an acknowledgment of the receipt of the request was provided.  Section 89(4)(b) states "that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal.

End

A formal request was sought today for an "Advisory Opinion" from the Department of State Committee on Open Government. The opinion sought from the Committee relates to whether or not the City of North Tonawanda, Honorable Mayor Soos, and City of North Tonawanda Police Department failed to comply with FOIL by its failure (among other matters) to respond to requests for information, that include releasing or explaining the whereabouts of photographic evidence taken at crime scenes inside North Tonawanda High School, North Tonawanda, NY, and related to written bomb threats alleged to have occurred on October 7 and October 11, 2005.  City of North Tonawanda Police Incident Reports in fact detail that on October 7, 2005, "Detective Capt. Hall and Detective Kalota then arrived at the scene and took photos at scene for evidence."  In a separate Incident Report, dated October 11, 2005, it is also detailed that "Lt. Mahoney responded and took pictures."  

The Committee on Open Government is responsible for overseeing and advising with regard to the Freedom of Information Law, Open Meetings Law, and Personal Privacy Protection Laws.  The Committee provides Advisory Opinion, both oral and written, to any person and promulgates rules and regulations relative to procedural aspects of laws. 

Previous correspondences on this matter can be read here: http://theeleventhdistrict.blogspot.com/2008/01/north-tonawanda-police-department.html