BUFFALO — More than six years after U.S. District Court Judge Richard Arcara asked lawyers for the Niagara Falls Bridge Commission why they were keeping secrets from the public, another judge has ruled they can keep keeping secrets.
Senior U.S. District Court Judge Michael Telesca ruled that under the terms of a joint resolution adopted by the U.S. and Canadian governments, the commission is not bound by the U.S. Freedom of Information Act. The ruling, issued in November 2016, but just recently discovered, brings to an end a decade-long effort by two former Niagara County legislators to force the commission to be more transparent.
“That’s unbelievable. Justice delayed is justice denied,” former county Legislator Dan Sklarski said last week when told of Telesca’s ruling. “That couldn’t be more true than in this case.”
Arguments between lawyers for Sklarski and former county Legislator John Ceretto and attorneys for the bridge commission last took place in U.S. District Court in Buffalo on Oct. 21, 2010. More than six years later, on Nov. 16, 2016, Arcara, without comment, transferred the case to Telesca, a then octogenarian semi-retired judge.
Telesca took just a week to issue a 10-page decision that concluded the bridge commission was shielded from the Freedom of Information Act by the terms of the legislation that created it.
“You have to respect the decision of the court,” Sklarski said. “I would have thought we would have received some information.”
Sklarski said a call from a Gazette reporter was the first word he’d heard on the conclusion of the case. Ceretto could not be reached for comment.
The last time Ceretto spoke about the lawsuit, in 2013, he said he was patiently waiting for Arcara to rule.
“When we (brought the lawsuit), we did it because we thought the people had a right to know what (the bridge commission was doing),” Cerretto said. “I think boards and commissions should be accountable.”
The lawsuit sought to force the commission to disclose information about the 2008 departure of its executive director, Thomas Garlock. Sklarski and Cerretto filed their request for details about Garlock’s separation agreement with the commission under the federal Freedom of Information Act which requires government agencies and entities to make information about their operations available to the public.
The lawsuit was Ceretto and Sklarski’s second attempt to force the commission to provide documents on Garlock’s exit. A prior lawsuit, brought under New York State’s Freedom of Information Law, was dismissed by Arcara, who ruled the commission was not a state agency and not subject to the state law.
The commission argued that it was neither a state nor a federal agency and was not subject to either of the public disclosure laws.
During the October 2010 arguments in the case, Arcara repeatedly asked commission lawyers, “What’s the big secret? What are you trying to hide? Who are you trying to protect?”
When the commission lawyers said they wanted to protect Garlock’s privacy, Arcara took issue with that position.
“But who pays him?” Arcara said.
“The commission,” one their lawyers replied.
“Where does the commission get its money from? From the public, when they cross the bridges, it gets it from me,” the judge said. “Your position, it defies common sense.”
In his prior ruling, Arcara declared, “There can be no doubt that the commission is a public authority of some sort, performing a public function.” Lawyers for Ceretto and Sklarski then argued the federal FOIA must apply to the commission.
In filings in state and federal court and in arguments in front of Arcara, lawyers for the commission have repeatedly insisted that they are not bound by the laws of either the United States or Canada because the board is “bi-national” and made up of half American and half Canadian members.
Commission lawyers also argued that if Arcara had ruled that the information was available under U.S. law, Canadian law bars the release of it.