“I just find it very curious that you’re scolding me for FOILing for a document in which I received from this village,” Residents Protecting Montgomery Co-Founder Don Berger said to Montgomery Village Attorney Kevin Dowd and Mayor Stephen Brescia at last Tuesday’s village board meeting. “I FOILed it legally!”

Berger noted that the village’s Master Plan Subcommittee recommendations on rezoning the I-1 District were vague in the size of warehouses as well as the number that are allowed on properties.

“This option significantly reduces the building size limitations to 50,000 square feet or slightly higher,” Berger said. “Slightly higher but less than the CP [Comprehensive Plan] recommendation of 100,000. Between 50 and 100,000, I don’t consider that slightly.”

Dowd noted that the document was supposed to be confidential to the village board.

“You weren’t supposed to get it,” Dowd said to Berger. “However what you’re looking at right now is a composite of suggestions.

recommendations, opinions of the committee looking for some guidance from this village board. Nothing has been written in concrete.”

Dowd added that no local law has been finalized on this matter. When it is finalized, the board will introduce it and there will be ample public hearings on the local law as the law requires.

Sophia Romano, a member of the Village of Montgomery Planning Board, agreed with Dowd that Berger should have waited for the recommendations to be finalized before FOILing them.

“He’s not scolding you and I don’t appreciate that you FOILed something that was just thoughts,” Rinaldi told Berger. “I don’t like I-1 but you know what, our attorney might tell us that we have to have an I-1. So all our thoughts that have been going on as a committee, you just take and assume. So forget the scolding, he’s an attorney, he told you what’s going on just like he tells us… Let the process happen. We will listen to you. We will listen to you when we have to. We will listen to you before. We will listen to you at the public hearing. But please don’t do this.”

Kristin O’Neill, assistant director of the Department of State Committee on Open Government in New York State, confirmed that Berger’s FOIL request was legal.

“A member of the public may submit a Freedom of Information Law (FOIL) request for any record – it is never illegal to submit a FOIL request,” she said. “Whether it will need to be disclosed by the agency will depend on content and whether any of the statutory grounds can be asserted… It is possible that the document could be withheld by the agency as ‘intra-agency material.’”