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Still Closed: WNYHS granted stay on OML/FOIL ruling

As promised by board chairman Robert Gioia, attorneys for Western New York Health Systems filed an order to show cause to stay the decision and order of the Supreme Court, Erie County, dated September 12, 2008, signed by State Supreme Court Judge Patrick H. NeMoyer, which in essence declared that past meeting minutes for Western New York Health Systems (or Newco, as it is casually called), must be made available pursuant to FOIL, and that all future meetings must be open to the public, according to the Open Meetings Law.

On Friday, October 10, State Supreme Court Judge Erin Peradotto granted a temporary stay until the five judges of the Appellate Division in Rochester can hear the matter on Monday, October 20.

Thus, I can’t report anything regarding the Newco board meeting that was scheduled for Wednesday morning, October 15, at WNED studios—because the temporary stay meant the meeting was closed to the public, as they have been all along. I can’t even seem to find out if such a meeting actually took place.

The Great Neck, New York law firm Garfunkel, Wild & Travis, P.C., submitted 135 pages of documents essentially arguing that should the meetings be opened to the public, Kaleida Health, a private entity that was never a party to the original lawsuit, will “unnecessarily and irreparably” suffer damage “by subjecting its strategic planning, physician information, patient data, financial information, marketing demographics, quality assurance data, managed care contracts and other sensitive, traditionally private information to public review, and place it at a competitive disadvantage vis-à-vis other health systems in the region.”

In granting the stay, Judge Peradotto acknowledged the argument put forth by the attorney for the petitioners, Peter A. Reese, that should any discussions arise that would compromise Kaleida’s proprietary secrets, the open meeting could be adjourned into an executive session. This, in fact, is common practice everywhere open meetings are held, from meetings of the Buffalo Fiscal Stability Authority to the Buffalo School Board.

Reese answers the petition in support of a motion for a stay in just four pages, focusing his objections on four points of law. One, that Kaleida is not and has not been a party to the proceeding, nor have they attempted to intervene in the matter in any way, shape, or form. Therefore, the respondents have no standing to assert the rights of Kaleida and their petition should be dismissed.

Two, even if Kaleida were to intervene, any possible harm could be avoided by resorting to executive session provisions in the Open Meetings Law. Therefore, there is no need to grant any stay in the enforcement of Judge NeMoyer’s order of September 12.

Three, that the assertion of the respondents that no demonstrable harm will be suffered by the petitioners from a stay is false. To continue holding meetings behind closed doors to conduct public business “will result in the violation of not only the rights of Petitioners-Respondents, but of those of all the citizens of New York State.”

Four, since ECMC is a public benefit corporation established by statute, all portions of Newco meetings that deal with that entity are of concern to the general public. Any stay should be “narrowly configured to permit secret deliberations only as to those items which deal solely with Kaleida and whose public revelation might result in harm to that private entity.”

Why this is turning into a protracted legal proceeding should be an issue of concern to everyone in our community. As the Buffalo News stated in a September 29 editorial, “It is disappointing to hear that Robert Gioia, chairman of the health system board does not agree with the ruling and that his organization will seek to have the decision stayed and overturned.” The News went on to say, “Whatever creation arises from their labors is much more likely to be successful if all of those who care about it—which should be all of us—have seen how the new model was designed, understand the reasons why and have reason to believe that the many layers of decisions were reasonable and not calculated to benefit one faction over another.”

Since then, Newco may or may not have already conducted another secret meeting on October 15, to which the public was not invited. We’ll have to see, on Monday, if the five appellate judges in Rochester agree that’s all the citizens of Western New York deserve.

buck quigley

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