Cohocton Wind Watch: Power Authority drags feet on FOI request on off-shore wind farms
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Thursday, August 12, 2010

Power Authority drags feet on FOI request on off-shore wind farms

The New York Power Authority, which is considering private-sector proposals to erect offshore wind turbines, has failed to fully respond to a legal request made two months ago by the Democrat and Chronicle for information about the proposals.

The authority is promoting construction of one or more wind farms in the New York waters of Lake Ontario or Lake Erie, an idea that has stirred considerable controversy in shoreline communities. Because of that controversy, local officials and activists have also expressed interest in obtaining the information sought in the request.

An authority lawyer is nearly four weeks overdue in answering an administrative appeal filed by the Democrat and Chronicle. The appeal seeks reversal of a decision by a different authority official to deny public access to any documents from the wind-farm proposals.

A spokeswoman for the Power Authority, Connie Cullen, said Tuesday that the Democrat and Chronicle's appeal "is still under review" by the authority's executive vice president and general counsel, Terryl Brown. The appeal was filed June 30 with an addendum the following day. Under a provision of the Freedom of Information law, Brown should have responded no later than July 16.

The authority said it received on June 1 five formal proposals for the wind farms from wind-energy developers, but it has declined to provide any details. The proposals are being considered behind closed doors, and Power Authority officials have said they would only reveal the winning proposal or proposals when the agency's trustees vote on the matter. They've said that likely would not occur until early next year.

Public 'very interested'

Releasing information about the proposals now would make it harder to negotiate a good deal and be unfair to the businesses involved, officials have maintained. In its appeal, the Democrat and Chronicle argued that revealing basic information about the proposals would not impede a contract award.

"It's clear that the public is very interested in this topic and has a right to know what has been proposed. We urge the Power Authority to release this information immediately," said Karen Magnuson, editor and vice president/news of the Democrat and Chronicle.

One fundamental element of the proposals that remains a mystery is where the developers have proposed to build their wind farms, which would feature groups of turbines towering more than 400 feet above the water. The proposed locations are the subject of much speculation on the part of opponents and shoreline residents, who continue to lobby elected officials on the topic.

Information needed

In recent weeks the town boards in Greece and Webster have voted unanimously to oppose the authority's project, and Monroe County legislators have been considering a resolution of their own.

"I didn't file an FOI, but I've requested information and not gotten any," said Ronald Nesbitt, town supervisor in Webster, where the Town Board cited the scarcity of details when it voted 5to0 last week to oppose the project.

In particular, he mentioned a rumor that Irondequoit Bay would be used as a construction staging area if turbines were built off the Monroe shoreline. No one knows if it's a pie-in-the-sky idea or a concrete proposal. Nesbitt said that rumor, and the town's inability to prove or disprove it, is largely what convinced board members to oppose the project.

"We need to read through concrete information. That's all I'm looking for," he said.

Nesbitt, citing his 15 years' experience in government, said he's learned to be wary of an agency that won't talk about a proposed project. Those are the agencies, he said, that want to "just ram it through and take it home."

"That's what some people are afraid of. I can see it. I know how processes work," Nesbitt said.

Al Isselhard, who lives on the Lake Ontario shoreline in Wolcott, Wayne County, and helped start an opposition group called Great Lakes Concerned Citizens, said he believes the authority has a self-serving reason for not releasing information about the proposals.

"They know that if they told people the potential locations the developers have picked ... there would be more organization specific to those areas to put up a fight against these locations," he said.

Isselhard filed his own FOI with the power authority late last year, a seemingly simple request for the sign-in sheets at a public meeting that he and dozens of other people had attended on the wind-farm project. He was given sheets, but information was blacked out and at least one sheet — the one that had his own name on it — was withheld.

"They have nothing but contempt for the FOIL law. That's from experience," Isselhard said.

Robert J. Freeman, executive director of the state Committee on Open Government, said he believes the authority has a legal obligation to make the documents public.

"If the deadline for submission of bids has been reached, in my opinion there is no way disclosure of the names of the bidders or basic details about the bids could impair the ability of the Power Authority to get the best deal for the taxpayer," he said. "In some instances, I would think that disclosure would enhance the ability of the government to make a better deal, not diminish their ability."

The Democrat and Chronicle's initial FOI law request was made June 10. It received no acknowledgment of the request within five business days, as required by the law. When no response was received by the end of the month, the Democrat and Chronicle made use of a part of the law that allows an administrative appeal to be filed if an agency ignores an FOI request.

Authority's position

The day after that appeal was sent via e-mail to the authority, the Democrat and Chronicle received an e-mailed response denying the initial request on the grounds that disclosure would "impair present or imminent contract awards." The authority's records access officer also said she had e-mailed an acknowledgment within the five-day window, though the Democrat and Chronicle had no record of receiving that response.

The Democrat and Chronicle then filed an addendum to its appeal, refuting the points made in the belated denial.

The FOI law doesn't provide for fines when public officials do not abide by the law. But the law does allow a party who challenges an appeal in court to seek attorney's fees and related costs when the agency had no "reasonable basis" for denying the request or "failed to respond to a request or appeal within the statutory time."

SORR@DemocratandChronicle.com

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