Deliberations on the Bethlehem Town Board were deadlocked last night as leaders discussed how to respond to a freedom of information request from Christopher Porco.
The board voted 2-2 over how to respond to Porco’s appeal, which was filed when the town refused his original FOIL request for all materials related to the murder investigation that led to his conviction.
Supervisor Sam Messina recused himself from the matter.
Town Attorney James Potter told the board Porco’s FOIL request was turned down because all of the police department’s materials were turned over to the Albany County District Attorney’s Office, which were then made available to Porco’s defense team in discovery when he was brought to trial. It is not incumbent on the town to provide records that have already been provided to the requester, he said.
“I looked into this very carefully,” Potter said.
The split vote will effectively mean the appeal will be refused, as that’s the result of issuing no response to an appeal within the mandated time frame. Porco could conceivably bring an Article 78 lawsuit against the town seeking the records.
Councilmen Mark Jordan and Kyle Kotary voted in favor of denying the appeal.
“I don’t see anything before me that would make me wan to overturn the determination,” Jordan said, adding that it shouldn’t be the town’s responsibility to take on the expense of providing records that have already been released.
Potter said fulfilling the FOIL request would likely involve a lot of legwork, not only because of the volume of records but because the police department may have disposed of some of them after holding on to them for several years. That includes documents like telephone bills, time cards or patrol records.
“It’s kind of chasing down, one: do we have the documents still? And two: does it relate to the Porco investigation?” Potter said.
The freedom of information law allows agencies holding records to charge a processing fee, which is generally set at a per-page rate by the holder of the records.
Councilman Mark Hennessey and Councilwoman Joann Dawson voted in favor of providing the records.
“A person’s life hangs in the balance with what happens with this case,” Hennessey said. “Even if it’s materials we provided before, we should provide it again.”
Porco was convicted in 2006 of murdering his father and attempting to murder his mother in their Bethlehem home. He’s serving a 46-year-to-life sentence now, and his lawyers are in the process of appealing the case to the state’s highest court.
A decision on that appeal is expected sometime this month.
