Village of Gowanda being sued for failing to respond to FOIL request

The Village of Gowanda is being sued again, this time for its “refusal to respond” to a Freedom of Information Law request filed by a local attorney.

Anthony Rupp, a Buffalo attorney, said his firm filed the Freedom of Information Law (FOIL) request in October, a month after he deposed the village’s top police officer, Dennis Feldmann.

During that September deposition, Rupp showed Feldmann numerous instances of two officers involved in a 2018 marijuana bust at the home of his client, David Yezek, giving inaccurate accounts of what happened that day in official law enforcement records.

Yezek in 2019 filed a federal lawsuit against the village, its police department and the officers involved for unlawful search and seizure in violation of his constitutional rights.

Rupp showed Feldmann the actions of the two officers, Sean Hotnich and Richard Cooper, as they were caught on surveillance video from inside and outside of Yezek’s home, and how they conflicted with what the officers wrote in the police report and search warrant affidavit.

That’s when Feldmann changed course and said he would launch an investigation into Yezek’s allegations of police misconduct.

The following is Rupp’s questioning of Feldmann in that deposition:

Rupp: Is it fair to say, Officer Feldmann, that we’ve now seen — just from what I

showed you so far today, that we’ve seen numerous instances of these officers being — giving

inaccurate accounts of what happened that day in numerous documents, several documents, both under oath and unsworn?

Feldmann: Yes.

Rupp: Okay. Does that give you any pause for concern?

Feldmann: Absolutely.

Rupp: Does it make you want to investigate Mr. Yezek’s allegations of police misconduct more thoroughly?

Feldmann: Yes.

On Oct. 26, Rupp had the FOIL request mailed to the village, asking for a series of documents, including any complaints and disciplinary actions lodged against the two officers, and “copies of all documents concerning any investigation of Sean Hotnich and/or Richard Cooper for their involvement in the arrest of David Yezek on July 20, 2018… .”

By law, the village had five business days to acknowledge receipt of the FOIL request and no more than 20 business days to provide the requested records.

“No response whatsoever,” Rupp said. “Not an acknowledgement of the request, not an indication that they would produce it to us. So that’s considered in the law, under Freedom of Information Law, a constructive denial.”

On Nov. 10, Rupp’s law firm appealed the village’s constructive denial, giving the village 10 business days to respond or provide the records. He said the village ignored the appeal, too.

When a government entity fails to respond to an appeal or declines to release the records, the only recourse is to file what is called an Article 78, a lawsuit that seeks a judge to compel the entity, in this case the village police department, to release the requested documents.

“It’s pretty much par for the course for the Village of Gowanda and especially their police department, they don’t follow any rules that they’re supposed to, so we’re not surprised that we had to commence this,” Rupp said.

News 4 Investigates reached out to Feldmann in October and again on Thursday, asking if the investigation had been conducted and what the results of it were. Feldmann did not respond to the inquiries.

Yezek filed his federal lawsuit over the controversial bust more than two years ago.

But Rupp said neither of the two officers have ever been disciplined for the inaccuracies they made in the police report and search warrant affidavit.

“Beyond that they are still the recipients of letters of commendation for the arrest they made in this case, you can’t make this up – they actually were commended in front of the Village of Gowanda board,” Rupp said.

Indeed, at the village’s Aug. 14, 2019, board meeting, Feldmann awarded both officers with letters of commendation for the bust and arrest. Four months later, the case and charges against Yezek was dismissed at the request of the Cattaraugus County District Attorney’s Office because the 30 pounds of packaged marijuana and nearly 600 plants seized from Yezek’s home had never been sent to a lab for confirmation testing.

Rupp said one of the reasons he filed the FOIL request was to find out what Feldmann’s investigation found, and what, if any, actions he took to ensure they do not happen again.

“They will not follow the law in any respect without a judge ordering them to follow it,” Rupp said.

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