Times files open records complaint against Rio

After waiting more than a month for requested records that as of this writing have not been released, Lakeland Times publisher Gregg Walker has filed an open records complaint against Oneida County supervisor Tony Rio.

Walker first filed the complaint with Oneida County sheriff Grady Hartman on November 21, 39 days after making an initial request to Rio on October 13. Rio acknowledged the request on October 18, saying he had opened the request only that morning, but he never stated he would release records and has not contacted the newspaper since.

Hartman subsequently forwarded the letter to Oneida County district attorney Jillian Pfeifer, who outlined to Walker various options he has in pursuing the complaint, including a formal request for Pfeifer to bring an action against Rio. Walker made that request to Pfeifer on November 28.

In filing the complaint, Walker said bureaucratic stonewalling is bad enough, but the lack of compliance in this case is even worse.

“We expect such obstruction from unelected bureaucrats, but Mr. Rio is an elected official, and it is especially incumbent upon him to be transparent and open,” Walker said. “Elected officials must understand that they are subject to the very same laws as everyone else, and, even more so, as policy-making and constituent-serving elected officials they must be held to a higher standard because of the position they occupy in the public trust.”

In his letters to Hartman and Pfeifer, Walker pointed out that he had been waiting for the records for more than a month.

“More than 30 days ago, we issued an open records request to Oneida County supervisor Tony Rio, and copied you in on the request for records,” Walker wrote to Hartman. “We did hear from Mr. Rio that he did receive our open records request, but as of today, we have not received any records. As you know, the law states as fast and practicable as possible and without delay.”

Obviously, Walker wrote, Rio either didn’t know the law or has been ignoring the request. 

“It should also be noted that Mr. Rio, being an elected official, should have his records readily available for inspection by the public, so there should be no delay in turning over the records we are requesting,” Walker wrote. “The courts have established that 10 days is generally the time frame for records to be turned over and we’re well past that time frame.”

As such, the newspaper said it was filing a formal complaint with the sheriff’s department against Rio for not complying with the law. In the November 21 letter to Hartman, Walker also asked the sheriff’s department to not only pursue the specific records requested but to open an investigation into Rio to make sure all of his records that fall within the open records statutes are readily available.

This week Walker filed a similar formal request with Pfeifer.

Initial request

Walker made the initial records request to Rio on October 13.

In particular, Walker requested “all records related to your position as an Oneida County supervisor from October 1, 2022, through October 1, 2023. This would include all such emails, Facebook posts, Facebook comments, texts, emails and letters, sent on private/personal devices.”

Walker further specified that he was making a blanket request for all public records that Rio was required to retain as a public official. In addition, he reiterated that he was seeking records in electronic format, as well as all metadata accompanying the messages. 

What’s more, the October 12 letter advised Rio that the law required him to respond to the request “as soon as practicable and without delay.”

“If we feel any laws have been broken, we will notify the sheriff and district attorney of Oneida County for prosecution,” Walker advised.

Five days later, Rio responded to Lakeland Times general manager Heather Holmes.

“I just opened it this morning.... sorry for the delay,” he wrote about receiving the request. “The county switched email services and I managed to lock myself out until yesterday.”

As of November 28, the newspaper had yet to receive any additional communications.

Elected officials are the custodians of their own records, unless they designate someone else as an official custodian. As Walker noted, response must be provided “as soon as practicable and without delay,” and while the law does not require a response within any specific date and time, such as “two weeks” or “48 hours,” “DOJ policy is that 10 working days generally is a reasonable time for responding to a simple request for a limited number of easily identifiable records,” the state DOJ compliance manual states.

What constitutes a reasonable time for a response to any specific request depends on the nature of the request, the staff and other resources available to the authority to process the request, the extent of the request, and related considerations, the DOJ states, and whether an authority is acting with reasonable diligence in responding to a particular request depends on the totality of circumstances surrounding that request.

However, the DOJ makes clear, “requests for public records should be given high priority.”

This week Walker said Rio had apparently given the records request “no priority.”

“Mr. Rio can’t drag his feet,” Walker said. “As an elected official, he is supposed to keep a file of his records that are readily accessible to the public. And just like every other official, Mr. Rio has two choices: Deny the request or comply with the request. It’s just a shame that people have to file legal complaints to compel an elected official to carry out a fundamental and core part of his job.”

In fact, Walker said, case law makes clear that elected officials should have all files — even public records kept on personal devices — readily available for public inspection.

“The law itself explicitly states that a representative government is dependent upon an informed electorate, and the legislature has declared that the public is ‘entitled to the greatest possible information regarding the affairs of government and the official acts of those officers’ who represent them,” Walker said.

In her letter to Walker, Pfeifer outlined three options available to pursue a complaint. The requester could bring a court action asking for release of the records, or the requester may request that the district attorney pursue a complaint. Requesters are also able to request that the state attorney general file a writ of mandamus to compel access to the records.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.