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Freedom of Information Hearing 10/2/18

As most of you know from my recent letter, NPA has received a complaint that the Association has violated the Freedom of Information Act (FOIA). FOIA is an act passed significantly after the creation of NPA, and NPA has never considered itself subject to FOIA. FOIA was made to give citizens access to the workings of government and its agencies. NPA Member Siobhan Peng placed the complaint with the Freedom of Information Commission and argued her case against the Association before the hearing officer on 10/2/18. She contends that as a body chartered by the State, the Association has powers given by the State, and has enough government support to be subject to FOIA as a agency of the Government.

Although attempts were made to settle the complaint, a hearing was assigned for 10/2. Ms Peng, an attorney, made the argument herself to the commission and NPA was represented by Daniel Krisch of Halloran and Sage, myself as witness of fact, and Fred Paxton witness of fact in his role of unofficial "historian". The legal argument as to why we are not subject to FOIA is laid out in his motion to dismiss (found in NPA documents section of the website). Attorney Krisch contends that not all Chartered bodies are subject to FOIA, that NPA receives minimal Federal/State/City support, is privately funded and run. He equates our powers to the powers of a homeowners association and not a State agency.

In an interesting request, Ms. Peng asked that as part of the "remedy" the FOIC order that NPA rescind the newest bylaw change relating to tenant restrictions on beach access. It is not clear to me that FOIC has the authority to order such an action, but I do think that such an action was a major goal of the complaint.

The hearing officer reports that a decision is not likely to be rendered until January, 2019. The legal cost of the defense is not yet detailed. After giving testimony at the hearing I do feel that attempting to defend this complaint without counsel would have been a serious mistake. Should we be found be subject to FOIA, a new layer of legal requirements will be added to the responsibilities of the Board of Governors, and will make all of our records, bylaws, agendas, minutes, and budgets available to the public (to whom I feel we do not owe such disclosure). It may be best to have the Association hire a management company to assist with the duties required.

When a decision is rendered I will surely communicate this to the community. Feel free to contact Fred or myself if you have questions about the hearing.

Scott Matson



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