Finley: 'I Obtained Addresses…NYTHA Could Have Done The Same'

by T. D. Thornton
Additional reporting by Mike Kane

Terry Finley has filed a supplemental protest in the NYTHA election dispute charging that NYTHA's staff could have obtained a list of 2013 and 2014 licensees and their addresses from the New York State Gaming Commission if they had simply filed the proper request. Finley said he obtained the list of names and addresses from the commission eight days after filing a Freedom of Information Law (FOIL) request, and enclosed that list with the filing. 

The issue of whether NYTHA could or could not obtain the state's list of occupational licensees to update the organization's membership roster has been a major issue in Finley's protest of his disputed 2014 presidential election loss, which is scheduled to be adjudicated at a closed-door NYTHA hearing Feb. 10. 

Finley, the president and founder of West Point Thoroughbreds, lost the Dec. 1 election to incumbent Rick Violette Jr., 625-611. 

Owners and trainers who raced a horse at a NYRA track from January 1, 2013 to October 1, 2014, were eligible to vote. 

In his affadavit submitted as part of the protest proceedings, NYTHA Executive Director James Gallagher said that he had asked the NYS Gaming Commission for the addresses, but was denied. 

“We made six separate requests to the Gaming Commission seeking the mailing addresses of Thoroughbred owners and trainers licensed in the State of New York,” Gallagher said in his affadavit, detailing four unanswered emails and a phone call which resulted in a call from Director of Licensing Jeffrey Allen who said he would get back to NYTHA with a response. “Mr. Allen did not get back to us with a response,” the affadavit reads. 

Gallagher's affadavit says NYTHA ultimately provided ballots to 3,410 members. 

“NYTHA Executive Director James Gallagher claims that NYTHA could not have obtained and used addresses for all licensees potentially eligible to vote from the New York State Gaming Commission because the State will not release addresses, even if a FOIL request is made,” Finley's protest states. “This is wrong. Mr. Finley has obtained the necessary addresses from the Gaming Commission through a FOIL request and they are enclosed with this submission.” 

Lee Park, the Director of Communications for the New York State Gaming Commission, explained in a statement Thursday why Finley was able to obtain the list of names from the NYSGC, but NYTHA was unsuccessful. 

“The Commission is a regulatory agency; we do not maintain the New York Thoroughbred Horsemen's Association's membership list,” Park said. “NYTHA never submitted a Freedom of Information Law request for thoroughbred licensee information. The Commission did, however, receive three separate FOIL requests regarding certain thoroughbred licensee information. Each of these requests came from representatives of West Point Thoroughbreds or Terry Finley. 

“Consistent with historic practice, the Commission denied the first request upon the grounds that release would be an “unwarranted invasion of personal privacy” pursuant to authority found at N.Y. Public Officers Law § 87.2 (b). A second  request was received, seeking a list of all licensed thoroughbred owners and trainers. This was provided. Upon receipt of the materials responsive to the second request, a third request was made, this seeking specific licensee contact information. This request included citations to both N.Y.S. Committee on Open Government opinions and various judicial decisions that questioned the propriety of the exemption application. Upon contemplation and review with the Committee on Open Government, the Commission changed its historic practice and provided the requested information.” 

In a text message Thursday afternoon, Gallagher said that he would not have any comment.

The new protest states that “NYTHA failed to communicate with 3,165 potentially eligible licensed owners to confirm their voting eligibility, and provided none of them with ballots. The names and addresses of those people are enclosed with this submission.” 

“The mere fact that NYTHA staff expended considerable time, energy, and resources to confirm the identity and address of members eligible to vote in the 2014 election does not mean the staff's efforts were well-directed and therefore reasonable,” the report reads. “They were not. The Gaming Commission's licensee data is clearly so superior to any other source that NYTHA's refusal to use that data for a mailing to presumptive members was per se unreasonable.” 

The report, prepared by attorney Christopher M. Green from the law firm of Boies, Schiller and Flexner, LLP, concludes that the 2014 election results should be set aside and a new election held using “a reasonably complete membership roster.” 

“The bylaws are very clear,” Finley said. “The organization is mandated to maintain a current membership roster. That doesn't mean once we come to an election you scramble around.” 

In the aftermath of the disputed election, Finley said he was told repeatedly by NYTHA officials that the state wouldn't release the addresses of licensees for privacy reasons. Finley initiated a FOIL request to see if they could get the addresses themselves. 

At first, Michelle Barbetta, the Records Access/FOIL Officer for the gaming commission, denied the request. Then Finley made a verbal appeal to Committee on Open Government executive director Robert Freeman Jan. 6 to explain how he intended to use the addresses. He followed up with a Jan. 12 letter to Barbetta reiterating the FOIL request. 

While this was playing out, NYTHA executive director Jim Gallagher was in the process of writing an affidavit for the hearing that included an explanation as to why NYTHA officials did not try the FOIL route. 

“For privacy reasons, the state will not release addresses, even if a FOIL request is made,” Gallagher wrote Jan. 16, presumably without knowledge that Finley's second try at a FOIL request was about to be approved. “Mr. Finley and his counsel's repeated assertions that the addresses of licensees are readily available to the NYTHA from the Gaming Commission is incorrect.” 

Four days later, Barbetta responded with an email approving the FOIL request. Citing the advice of Freeman, she wrote that the “disclosure of both mailing and electronic mail addresses were appropriate” and attached the requested file. 

“It's very straightforward. The contention that the state would not release addresses for owner and trainers who are licensed to race in New York is wrong,” Finley said. “We had to affirm that we weren't making the request for commercial or fundraising purposes, and when we did that, the request was granted.” 

The wording of Section 89 of New York's FOIL statute reads: “The committee on open government may promulgate guidelines regarding deletion of identifying details or withholding of records…to prevent unwarranted invasions of personal privacy. In the absence of such guidelines, an agency may delete identifying details when it makes records available.” 

The phrasing “may delete” could explain the difference in interpretation between how the gaming commission at first thought the addresses were off limits while Finley and his attorney received a different interpretation after Barbetta sought Freeman's advice. 

“To the best of our knowledge [NYTHA] had never filed a freedom of information request, which is really the only viable way,” Finley said. “When you deal with a government agency you don't request information on licensees via phone calls or notes to individuals. You request that information using a FOIL request. 

“The real focus of my contention is that NYTHA had an obligation to ensure that they did everything that they could to make sure every member of the organization got a ballot,” Finley continued. “Did that affect the outcome of the election? We'll never know. If they would have had this list, they would have been able to address the segment [of the voting population] that's in question. We made some conservative assumptions, so that's how we came up with the 1,500 [eligible voters who didn't get ballots].” 

“There were so many people who were disenfranchised by this election, particularly partnership people, and I felt I needed to stand up for them,” said Finley.

Now that Finley has shown it is possible to access state licensing records to update the NYTHA voting list, the next question concerns whether or not he will be allowed to utilize that info at his protest hearing. 

According the rules NYTHA set for the closed-session hearing, Finley's deadline for filing evidence was Jan. 5. Will this new piece of information be admissible more than a month beyond that cutoff date? 

“I'd like to think yes,” Finley said. “We got this information right after we submitted our filing. Obviously, we believe this is most impactful. It really makes a difference, and should be information that the board has and utilizes to make its decision. I know each one of the NYTHA board members want to do the right thing here–and it's obvious now that NYTHA could have and should have contacted all potentially eligible members to update its ballot mailing list using the Gaming Commissions address information. A new NYTHA election should be held using election procedures that comply with NYTHA's By-Laws and a reasonably complete membership roster as soon as one can be developed using the Gaming 
Commission addresses.”