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Bid to purge lead inspection reports more than 7 years old stirs debate

The top lawyer for Erie County Executive Chris Collins wants county agencies to start destroying older records, including the inspection reports that still help families sue landlords when children are poisoned by lead-based paint.

County Attorney Cheryl A. Green also told the Legislature on Thursday she will not abide by its measure to protect inspection reports more than seven years old by designating them "historic" documents. She said the Legislature is treading on powers granted the county executive.

Green said she worries that preserving one set of records will force the county to keep other records -- unrelated to lead -- which might someday fuel lawsuits against the government. The lead inspections themselves can't be used against counties because of a State Court of Appeals decision in 2004.

Still, Green said granting special protection for the lead reports "sets a bad precedent." She has so far deflected compromises offered by private attorneys who consistently need the reports for lawsuits on behalf of poisoned children. But she said she will meet with the lawyers again in coming days.

Certain Buffalo neighborhoods have significant lead risks. Buffalo's 14212 ZIP code straddling Broadway contained upstate New York's greatest percentage of infants and toddlers with lead poisoning -- one of every seven -- when the state Health Department conducted tests in 2001.

The Rev. Jeff Carter of Ephesus Ministries on Grider Street, in an East Side neighborhood with significant lead levels, called it an atrocity to destroy the records.

"I am sure there are a lot of landlords who would be very happy about this," he said. "My concern is not just about today. It's about making sure the right people remain accountable in the future."

When infants test positive for lead poisoning, the county Health Department inspects the home to assess the risks there, looking especially for flakes of lead-based paint that would have been used before 1978.

But while a parent might know their child has been exposed to lead, impairments such as hyperactivity, aggression or learning difficulties might not appear for years. When they do, families are then motivated to begin a lawsuit, and the search for records begins, lawyers explained.

A lead-poisoned child can sue up to age 21. The county will keep a separate set of documents, those focused on the child's health, for 21 years, Green said. But she wants to start following New York State Archives guidelines that allow the inspection reports to be destroyed after seven years.

When Kathleen A. Burr of the Buffalo law firm Lipsitz & Ponterio recently requested county inspection records prior to 2001, she learned her reports were in jeopardy because of Green's plans to destroy them.

The law firm offered Green a compromise: If she was concerned about the cost to store the records, the firm would pay to have them digitally recorded. It obtained a quote of $12,000.

Burr reasoned the county would want to protect the records because portions of a lawsuit's winnings often go to reimburse the county for Medicaid-provided care the poisoned child received. She said Lipsitz & Ponterio has paid Erie County about $400,000 over the years.

Still, Green refused to preserve the records because she might then be expected to preserve other types of older records when they could be purged. She told county lawmakers that past county administrations only loosely followed the state guidelines, and she wants that to change.

The guidelines state that some records should be kept forever -- land transactions and records created before 1910, for example -- and others may be purged after as few as seven years.

The county's top records official, County Clerk Kathy Hochul, said she never destroys a record unless the agency that generated it signs off.

Legislature Majority Leader Maria R. Whyte, D-Buffalo, proposed Thursday that lawmakers protect the lead inspections by designating them historic.

She and the other Democrats approved the statement, 12-3, over the objections of three Republicans loyal to Collins.

e-mail: mspina@buffnews.com

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