Email list photo

After filing a Freedom of Information Law (FOIL) request, Bob Selvaggio, a candidate for village trustee on the Voters Choice Party (VCP) slate, received approximately 12,700 email addresses from the village’s communication listserv on Sept. 11.

The email listserv, known as the “Notify Me” email communication system, allows residents to sign up to receive important updates and messages from the village of Scarsdale, including its official e-newsletter and emergency alerts, pool closures, recreation highlights and more.

After duplicates were eliminated, about 4,400 email addresses remained in the database. According to VCP campaign chair Mayra Kirkendall-Rodríguez, the email addresses haven’t been used for VCP campaigning purposes as there was no way for the party to determine which of the roughly 4,400 email addresses belonged to residents.

“The data [is] only as good as how it was designed,” said Kirkendall-Rodríguez. “This was designed to capture [first] name, last name and email. It did not ask for an address.”

After speaking with the Inquirer on Sept. 14, in a follow-up interview on Sept. 16 Kirkendall-Rodríguez said she spoke with the VCP candidates to discuss their intended use of the FOIL email database. The group decided to use a third of the email addresses for a VCP email campaign on Tuesday at around 5:30 a.m.

Kirkendall-Rodríguez said if residents received unsolicited emails from the VCP prior to Sept. 15 then their email address wouldn’t have come from the FOIL request.

Berg said he didn’t think the party had sent out any emails using the FOIL database until Sept. 15 and he didn’t know how people not originally subscribed to VCP’s email list had received emails prior to Tuesday, as the group uses many different avenues for obtaining email addresses.

According to Selvaggio, he and Kirkendall-Rodríguez were the only two within the party who had access to the FOIL email database.

Deputy Village Manager Robert Cole told the Inquirer there were 4,317 unique email addresses in the database.

Selvaggio would not send the purported email address database to the Inquirer to examine. The Inquirer put in a request with the village to view Selvaggio’s FOIL request and the database.

Selvaggio, who ran an unsuccessful campaign for trustee in 2017, filed the FOIL request in April because he and other candidates for the Voters Choice Party wanted to respond to statements made by Mayor Marc Samwick in the mayor’s open letter to the Scarsdale community on April 23.

The four-page letter, which hit upon multiple topics such as protocols for New York state antibody testing and land use boards, focused in large part on the village board’s scheduled vote to adopt the village budget on April 28.

In the letter, Samwick wrote that if the village needed to cut services in the future they would “do so carefully, thoughtfully, and with community input.”

“Unfortunately, some view the current situation as an opportunity to create a political divide,” wrote Samwick, referencing community members who had supposedly advocated to “penalize” first responders and ask the village justice to forgo his salary.

“This is unacceptable, especially at the time when we need our first responders more than ever. We cannot penalize first responders working hard in extraordinary circumstances, or public servants who continue to perform the job they were elected to do,” Samwick continued. “Degrading our professional police, fire department, or criminal justice services is not only unconscionable but also unwise. Rather than divisiveness or political games, I prefer to look to two non-partisan, century-old local institutions — The Scarsdale League of Women Voters and The Scarsdale Forum.”

Bob Berg, a VCP candidate who is also running for the board of trustees, said he found Samwick’s comments in the open letter to be an “abusive use of the email list.”

“It was clearly a political attack on us, in particular on our budget proposals,” said Berg.

Samwick told the Inquirer he didn’t deem his comments in the letter to be “political” and he was protecting first responders while the pandemic was still raging across the state.

“That is not the time to disparage [first responders]. That is not the time to say that we shouldn’t pay them in accordance with their contract,” Samwick said.

Samwick said his letter was in response to various comments made by members of the public, but couldn’t remember if the comments only came from VCP members.

“When are you drawing the lines on politics? What’s political and what isn’t? We’re operating a government and if people make political comments, especially if they’re not correct, it can be incumbent on somebody to say something and correct the record,” said Samwick. “Responding to an inaccurate statement doesn’t in and of itself make it political.”

Berg said the VCP was criticizing the village’s decision to enter into a five-year contract with the police department and the group was not disparaging first responders in its budget proposals.

“Why in the world would you enter in a five-year contract with the police? Giving them healthy raises. They’re already a well-paid department,” said Berg. “We want our police department to be highly paid, of course we do. They do a wonderful job. But who in their right mind, as a fiscally responsible board, enters into a five-year deal at that time?”

Selvaggio said he wanted to respond to the mayor’s comments in April. Because the “Notify Me” email communication system didn’t allow for a “reply all” functionality, Selvaggio submitted a FOIL request the next day for all the email addresses that received the mayor’s letter.

“I’m not in any way criticizing him for his comments,” said Selvaggio. “I certainly wanted to [rebut] them and I wanted to clarify and maybe correct them if I could, but the fact that he made those comments … that’s part of the political process.”

According to state law, FOIL requests must be responded to within five business days of receipt of the request.

Donna Conkling, Scarsdale’s village clerk, notified Selvaggio on May 1 that the COVID-19 pandemic had put a strain on village staff and the village would advise him “as soon as practical” on a time for processing the request.

Selvaggio emailed Conkling and Village Manager Steve Pappalardo twice in July requesting an update on the FOIL. Conkling responded that due to the nature of the records Selvaggio requested, she had decided to seek guidance from the Committee on Open Government.

Pappalardo was not available to respond to the Inquirer’s request for comment on Sept. 14.

After another email from Selvaggio on Sept. 10, the village sent him a written certification, to which he applied in the affirmative that he would not use the email addresses for solicitation or fundraising purposes. He said he received the exported list of email addresses in an excel spreadsheet the next day.

“I would imagine that if the VCP does use it, it would be for purely informational purposes,” said Selvaggio. “I would oppose any type of attack against the other party in the use of that list.”

Selvaggio added that he would be in favor of the VCP developing guidelines for the use of the emails obtained through the FOIL request.

Email address databases maintained and possessed by municipal governments are legally subject to FOIL, according to Kristen O’Neill, assistant director for the Committee on Open Government.

According to a 2016 appellate court decision in Livson v. Town of Greenburgh, which was litigated by former Edgemont Community Council President Bob Bernstein, the Supreme Court and Appellate Division held that FOIL’s invasion of privacy exemption did not apply to municipal email databases. The Supreme Court wrote that the disclosure of names and email addresses was conditioned upon the petitioner not reproducing, redistributing or circulating the email list or using the information for “solicitation, fundraising or any commercial purpose.”

According to O’Neill, the court’s decision on “solicitation” referred only to business practices.

“They could send out an email saying ‘Hi, I’m John Doe. Vote for me’ but they can’t say ‘Hi, I’m John Doe. Vote for me and if you’d like to help me with this election by contributing to my campaign, here’s a link.’ That second thing they shouldn’t be doing,” said O’Neill.

Trustee Justin Arest, the liaison to the Advisory Council on Communications and a candidate who was reelected Sept. 15 for a second term as village trustee on the nonpartisan party slate, said the village website’s privacy policy states that the village may occasionally release information about visitors when release is appropriate to comply with law.

“With that being said, neither the village nor the communication council, which spent countless hours garnering the community’s trust and information for the ‘Notify Me’ subscription list, anticipated having to release the private information of residents in such a context,” said Arest. “I respect open government. It is a vital part of our democracy and, as an elected official, transparency and access to information is an important part of the job. However, the distribution of personal email addresses given solely to receive community updates for third party use … is wrong.”

Arest said he was concerned that future sign-ups for the “Notify Me” distribution list would be difficult to obtain and that residents were already sharing their frustrations over their personal information being released.

“I am beyond disappointed and share the community’s displeasure,” said Arest. “I hope the community understands that such a release of information was never anticipated, and the village pursued various options to safeguard their data. In the end, the law was not on our side.”

Selvaggio said he hoped that residents wouldn’t be dissuaded from signing up for the “Notify Me” listserv.

“The last couple of days have been extremely unpleasant,” said Selvaggio. “I personally have been mercilessly attacked for just exercising my right with a FOIL request to respond to the Citizens’ [Nonpartisan] Party’s own use of that list.”

Samwick said he was finalizing a letter to state representatives seeking to make government-maintained email address databases exempt under FOIL.

“At the end of the day, public trust in government is of paramount importance and we need to do whatever we can to protect that trust in government,” said Samwick.

In his letter, dated Sept. 14 and addressed to Assemblywoman Amy Paulin and also sent to Majority Leader Andrea Stewart-Cousins, Samwick wrote that community members have “a reasonable expectation of privacy” when subscribing to governmental electronic communication lists and to make the personal contact information contained within governmental subscription lists available to third parties through FOIL “violates public trust and significantly jeopardizes the ability of government to disseminate important information to the public.”

“Please develop and introduce legislation to exempt from release under FOIL any personally identifiable information, such as an email address, contained in a governmental listserve used to inform, educate, and engage the public in governmental actions and decision-making,” wrote Samwick. “It may also be a worthwhile endeavor to examine New York’s overall approach to data privacy protections for purposes of their appropriate and necessary modernization.”

Berg said Samwick’s proposed letter was “antithetical to the entire purpose of the Freedom of Information Act.”

“All they want to do is hide stuff, they’re so nontransparent,” said Berg.

Paulin, who has likely written more open meeting and FOIA measures than any other sitting member of the New York Legislature, told the Inquirer she is looking at the “breadth of the FOIL law, understanding that no one gave their emails thinking that they would be given to a third party.”

“Understanding that the village is allowed to redact personal information in most circumstances, and should they be allowed to do so in this circumstance, right now I am leaning that they should be allowed to redact [email addresses] because you want a system that allows the municipality to disseminate information on public safety and other village matters.”

Out of concern that people “won't sign up if they are worried about email privacy,” Paulin said she’s looking at the court case and the decision by the Committee on Open Government “to see how we could make a very narrow change so that we wouldn't undermine the FOIL law.”

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