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Erie County pays $27K, but plans to appeal order that sheriff turn over jail records

A little-watched court case shows that Sheriff Timothy B. Howard and his team are reluctant to let the public see internal reports about serious incidents in the Erie County jails.

The Buffalo chapter of the National Lawyers Guild had its Freedom of Information request rebuffed by county officials and then went to court in February 2018. The Guild wanted a range of internal "incident reports" about suicides, suicide attempts and other serious events in the jails.

In January, almost two years later, State Supreme Court Justice Mark A. Montour signed an order granting the Guild many of the records and awarding it more than $27,000 in attorney's fees.

While the Guild has collected the $27,098, the records will not be handed over any time soon. Two weeks after Montour signed the order, a county lawyer filed a document saying the Sheriff's Office will appeal to the State Supreme Court's Appellate Division.

The notice puts Montour's order on hold as an appeal plays out. Second Assistant County Attorney Jeremy C. Toth has 60 days to file it and can ask for an extension if he cannot make the March 30 deadline.

The Guild, based in New York City, is a nonprofit that promotes human rights. The Buffalo chapter is comprised of local attorneys who are represented in the case against the Sheriff's Office by the Civil Liberties and Government Transparency Clinic at the University at Buffalo Law School.

Should the Guild win the appeal, it will again ask for attorney's fees.

"My understanding is if we prevail at the next level, we would be entitled to attorney's fees, and we will ask for those," said Michael F. Higgins, the staff attorney for the clinic. After the county filed its notice of appeal, Higgins filed one, too, should he choose to appeal aspects of the Montour ruling that did not go in the Guild's favor.

The Howard team's line against Freedom of Information requests for jail records has been hardening since 2017, after The Buffalo News obtained certain incident reports under the open records law. The reports showed that Howard's Jail Management Division, operating under a Justice Department order to better prevent suicides, had been labeling suicide attempts as "individual inmate disturbances." With that category, Erie County jailers  did not need to report the attempt to the state Commission of Correction in Albany.

Suicide attempts recorded as 'individual inmate disturbances' at county jail

With Toth, the Howard team has since denied FOI requests from The News and initially ignored The National Lawyer's Guild's request for documents that could shine more light on whether incidents were being accurately reported. In May 2018, The News filed an affidavit in support of the Guild's court case.

The sheriff's team and Toth argued that releasing many internal jail records, from the county Holding Center in downtown Buffalo and the Correctional Facility in Alden, would violate inmates' privacy. The Guild, however, said it was willing to forgo inmate names. Montour's order lets county officials black out names before handing over the documents.

Meanwhile, the Democrats who control the County Legislature also want records from the Sheriff's Office. Frustrated that they are the last to learn an inmate has died – every six months on average during Howard's time in office –  Democratic lawmakers introduced a bill this month requiring the sheriff to give a basic report to the Legislature whenever an inmate dies or requires hospitalization for a serious injury. Six lawmakers sponsored the bill, enough to pass it and send it to County Executive Mark C. Poloncarz.

County legislators introduce law requiring more transparency in jail deaths

The Sheriff's Office did not respond to a request for comment on its appeal in the National Lawyers Guild case.

Toth and Howard successfully appealed another Montour decision: That four Erie County residents – former members of the county's Community Corrections Advisory Board – have the legal standing to seek a contempt ruling should the Howard team fail to accurately report serious jail incidents to the state Commission of Correction. The Appellate Division unanimously overruled Montour's decision. The four residents are considering an appeal to the state's highest court, the Court of Appeals.

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