FOIA Request for Oath of Office and Public Surety Bonds for the New York State Assembly Members (New York - Secretary Of State)

To Whom It May Concern:

Pursuant to the New York Freedom of Information Law, I hereby request the following records:

•Photocopies of public officials’ Oaths of Office for:
1. Carl E. Heastie
2. Crystal D. Peoples-Stokes
3. Helene E. Weinstein
4. Catherine Nolan
5. Phil Ramos
6. Jeffrion L. Aubry
7. Vivian E. Cook
8. N. Nick Perry
9. Michaelle C. Solages
10. Alicia Hyndman
11. William Colton
12. José Rivera
13. Stacey Pheffer Amato
14. Pamela J. Hunter
15. Jaime R. Williams
16. Pat Burke
17. Inez E. Dickens
18. Jeffrey Dinowitz
19. Richard N. Gottfried
20. Rebecca A. Seawright
21. Monica P. Wallace
22. Al Taylor
23. Maritza Davila
24. Edward P. Ra
25. Michael J. Fitzpatrick
26. Kevin M. Byrne
27. David DiPietro
28. Brian D. Miller
29. Angelo J. Morinello
30. David G. McDonough
31. Brian Manktelow
32. Jake Ashby
33. Michael J. Norris
34. William A. Barclay
35. Andy Goodell
36. Mary Beth Walsh
37. Joseph M. Giglio
38. Stephen Hawley
39. Philip A. Palmesano
40. Ken Blankenbush
41. Karl Brabenec
42. Michael Montesano

• Photocopies of Public Officials Surety Bonds for public officials listed above that is required by the State of New York under Universal Citation: NY Pub Off L § 11.
• Photocopies of their Faithful Performance Bond and/or Fidelity Bond and/or Public Employee Blanket Bond and/or Statutory Bond and/or Errors & Omissions (E&O) and/or Surety Liability Insurance Policy and/or Risk Management Policy and/or the Duty of Care Policy and/or Certificate of Liability if applicable.

• Photocopies of the following documents if applicable:
o ACORD 125
o ACORD 126
o ACORD 127
o ACORD 128
o The documents should indicate the policy number and the insured amount of the policy.
• Public Officials and/or any other bonds pertaining to proof of liability and policies.
**Based on any and all loses of financial responsibility due to negligence or dishonesty. Any and all based on the contract of terms and conditions.

• Photocopies of the Power of Attorney for the Surety Bond company for public officials listed above, if applicable.
• Photocopies of the Blanket Bond Power of Attorney for the Surety Bond company for public officials listed above ,if applicable.

If you deny any or all of this request, please cite each specific exemption you feel justifies the refusal to release the information and notify me of the appeal procedures available as guaranteed under the law.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

Marvin Garvey

Ms. Watson, thank you for your response.

Please cite each specific New York State and federal laws that apply to "applicable exemptions, legal privileges and responsiveness" for public officers regarding oaths of office and public surety bonds.
This is not clear from your answer to as to which specific "applicable exemptions, legal privileges and responsiveness" are you referring to?

I am sure you are aware of 5 U.S. Code § 3331 - Oath of office 5 U.S. Code § 3331 - Oath of office | U.S. Code | US Law | LII / Legal Information Institute (cornell.edu)

New York State Constitution Article XIII, section 1 clearly states that all public officers are required to take an Oath of Office BEFORE entering public office.
https://law.justia.com/constitution/new-york/article-xiii/section-1/

The Constitution of NYS and the federal law have not changed to my awareness.

Furthermore, Federal Law (31 USC Chapter 93) and New York State laws (Chapter 47, article 2, sections 11 to 13) require that any officer file for oaths of office and surety bonds or "official undertakings"

New York Public Officers Law, Chapter 47, article 2§ § 11. Official undertakings. "Every official undertaking, when required by or in pursuance of law to be hereafter executed or filed by any officer, shall be to the effect that he will faithfully discharge the duties of his office and promptly account for and pay over all moneys or property received by him as such officer, in accordance with law, or in default thereof, that the parties executing such undertaking will pay all damages, costs and expenses resulting from such default, not exceeding a sum, if any, specified in such undertaking. The undertaking of a state officer or clerk or employee shall be approved by the attorney general as to its form and manner of execution and by the comptroller as to the sufficiency of the sureties and be filed in the comptroller's office."

https://uscode.house.gov/view.xhtml?req=granuleid%3aUSC-prelim-title31-chapter93&edition=prelim&msclkid=212652d2b8fd11ecb3efcfe148e36110

https://www.nysenate.gov/legislation/laws/PBO/A2

As you may know bills are not laws. https://www.nyassembly.gov/leg/?term=2021&bn=A09607

Public Officers Law § 89 [3] commands that a government entity that does not supply any record in response to a FOIL request “shall certify that it does not have possession of such record or that such record cannot be found after diligent search” (Public Officers Law § 89 [3] [a] … ). Although “[t]he statute does not specify the manner in which an agency must certify that documents cannot be located” … , respondent failed to provide any such certification … . Accordingly, “we remit the matter to Supreme Court for a determination of whether respondent has any other documents in [his] possession which are responsive to petitioner’s FOIL request” … , or, if no responsive records can be found after a diligent search, for respondent to provide a proper certification as required"... Matter of Thomas v Kane, 2022 NY Slip Op 02164, Third Dept 3-31-22

What are the appropriate channels for challenging legislative intent of the bills that the legislature is attempting to pass into laws, while DOS can not provide their Oaths of Office in timely manner? The legislation can only make laws pertaining to powers granted.

The requested documents will be made available to the public, as this request is not being made for commercial purposes.

The oaths of office for public officers should be easily accessible to general public, and the proposed timing of 5/24/2022 is unacceptable.

This further puts to question if all and/or some officers mentioned have oaths of office and public surety bonds?

I am requesting this correspondence is sent to Committee on Open Government that should review this FOIL request and my objections to the governmental transparency at coog@dos.ny.gov

Sincerely,
Marvin Garvey

I hereby appeal the denial of access regarding our request made on March 29, 2022 , which was rejected on the following dates:

April 26, 2022
April 27, 2022

Which was sent to:

Department of State
Records Access Office
One Commerce Plaza
99 Washington Avenue
Albany, NY 12231

The records that were denied include:

•Photocopies of public officials’ Oaths of Office for:

1. Carl E. Heastie
2. Crystal D. Peoples-Stokes
3. Helene E. Weinstein
4. Catherine Nolan
5. Phil Ramos
6. Jeffrion L. Aubry
7. Vivian E. Cook
8. N. Nick Perry
9. Michaelle C. Solages
10. Alicia Hyndman
11. William Colton
12. José Rivera
13. Stacey Pheffer Amato
14. Pamela J. Hunter
15. Jaime R. Williams
16. Pat Burke
17. Inez E. Dickens
18. Jeffrey Dinowitz
19. Richard N. Gottfried
20. Rebecca A. Seawright
21. Monica P. Wallace
22. Al Taylor
23. Maritza Davila
24. Edward P. Ra
25. Michael J. Fitzpatrick
26. Kevin M. Byrne
27. David DiPietro
28. Brian D. Miller
29. Angelo J. Morinello
30. David G. McDonough
31. Brian Manktelow
32. Jake Ashby
33. Michael J. Norris
34. William A. Barclay
35. Andy Goodell
36. Mary Beth Walsh
37. Joseph M. Giglio
38. Stephen Hawley
39. Philip A. Palmesano
40. Ken Blankenbush
41. Karl Brabenec
42. Michael Montesano

• Photocopies of Public Officials Surety Bonds for public officials listed above that is required by the State of New York under Universal Citation: NY Pub Off L § 11.
• Photocopies of their Faithful Performance Bond and/or Fidelity Bond and/or Public Employee Blanket Bond and/or Statutory Bond and/or Errors & Omissions (E&O) and/or Surety Liability Insurance Policy and/or Risk Management Policy and/or the Duty of Care Policy and/or Certificate of Liability if applicable.
• Photocopies of the following documents if applicable:
o ACORD 125
o ACORD 126
o ACORD 127
o ACORD 128
o The documents should indicate the policy number and the insured amount of the policy.
• Public Officials and/or any other bonds pertaining to proof of liability and policies.
**Based on any and all loses of financial responsibility due to negligence or dishonesty. Any and all based on the contract of terms and conditions.
• Photocopies of the Power of Attorney for the Surety Bond company for public officials listed above, if applicable.
• Photocopies of the Blanket Bond Power of Attorney for the Surety Bond company for public officials listed above, if applicable.

As required by the Freedom of Information Law, the head or governing body of an agency, or whomever is designated to determine appeals, is required to respond within 10 business days of the receipt of an appeal. If the records are denied on appeal, please explain the reasons for the denial fully in writing as required by law.
In addition, please be advised that the Freedom of Information Law directs that all appeals and the determinations that follow be sent to the Committee on Open Government, Department of State, 41 State Street, Albany, New York 12231.

Sincerely,

Marvin Garvey

Dear Ms. Watson , thank you for your response and for the documents you have provided.

I am requesting a certification from The New York -Secretary of State Office that you are not in possession of following documents requested by FOIL on 3/29/22 for the NYS Assembly Members mentioned in FOIL :
• Photocopies of Public Officials Surety Bonds for public officials listed above that is required by the State of New York under Universal Citation: NY Pub Off L § 11.
• Photocopies of their Faithful Performance Bond and/or Fidelity Bond and/or Public Employee Blanket Bond and/or Statutory Bond and/or Errors & Omissions (E&O) and/or Surety Liability Insurance Policy and/or Risk Management Policy and/or the Duty of Care Policy and/or Certificate of Liability if applicable.
• Photocopies of the following documents if applicable:
o ACORD 125
o ACORD 126
o ACORD 127
o ACORD 128
o The documents should indicate the policy number and the insured amount of the policy.
• Public Officials and/or any other bonds pertaining to proof of liability and policies.
**Based on any and all loses of financial responsibility due to negligence or dishonesty. Any and all based on the contract of terms and conditions.
• Photocopies of the Power of Attorney for the Surety Bond company for public officials listed above, if applicable.
• Photocopies of the Blanket Bond Power of Attorney for the Surety Bond company for public officials listed above, if applicable.

I am reminding you that according to Public Officers Law § 89 [3] commands that a government entity that does not supply records in response to a FOIL request “shall certify that it does not have possession of such record or that such record cannot be found after diligent search” (Public Officers Law § 89 [3] [a] … ). Although “[t]he statute does not specify the manner in which an agency must certify that documents cannot be located” … , respondent failed to provide any such certification … . Accordingly, “we remit the matter to Supreme Court for a determination of whether respondent has any other documents in [his] possession which are responsive to petitioner’s FOIL request” … , or, if no responsive records can be found after a diligent search, for respondent to provide a proper certification as required"... Matter of Thomas v Kane, 2022 NY Slip Op 02164, Third Dept 3-31-22

This is my second request to issue a certification if the NEW YORK SECRETARY OF STATE office does not have above requested documents.

thank you

Marvin Garvey