Schenectady County

Brown Transportation Co. demands access to video

Under threat of a potential lawsuit, Brown Transportation filed its own suit against the city last m
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Under threat of a potential lawsuit, Brown Transportation filed its own suit against the city last month demanding access to a video it had handed over to Schenectady police in an assault investigation.

The company gave the video — from an onboard “driver’s cam” — to police after an Oct. 5 incident outside Central Park Middle School, when a student was allegedly assaulted by other students. That victim’s mother, Theresa Smith, in December filed a notice of claim for more than $10 million against Brown, Schenectady City School District and the city.

Brown’s attorneys in January, preparing for that potential litigation, requested the recording from the city but were denied. Last month, they filed suit asking a judge to order the city turn over a copy of the video.

The company argues it is “entitled” to the recording which, it writes, is “Brown Transportation property.” But the city attorney said Tuesday that the city is barred by state law from releasing material “related to the arrest” of juveniles.

City Corporation Counsel Carl Falotico said the city denied the request because he feels it falls under the state Family Court Law, which states that “all police records related to the arrest of any juvenile has to be kept apart from adult arrest files and a judge must sign off on giving it out,” Falotico said.

“I understand where they are coming from and their frustration,” Falotico said of Brown’s arguments. “We feel we had to deny their request.”

While Schenectady police didn’t confirm whether arrests were made in connection to the Oct. 5 incident, letters from Brown attorneys suggest the police investigation had led to charges, and Falotico’s reasoning for withholding the video referenced records “related to the arrest of a juvenile.”

In an earlier interview, Denise Resta-Tobin, who is representing the Smith family in its potential suit against Brown and the district, said “the injuries and issues my client will have to deal with, probably for the rest of his life, more than warrants” the more-than $10 million claim.

Edward Tobin Jr., an attorney representing Brown Transportation, argues the city’s rationale for denying its request were inadequate because the video was produced for Brown’s “business purposes” not material created as part of an investigation. He further argues that the family court law doesn’t apply, because the law refers to “use of police records,” and the video is not a police record.

“I am at a loss as to why if it is our video originally, we are now not entitled to at least of copy of it,” Tobin wrote in a March 18 letter addressed to Schenectady Mayor Gary McCarthy.

That letter was Tobin’s official appeal of the city’s initial decision to deny his Jan. 20 Freedom of Information Law request for access to “the complete investigation records, communications and reporting’s of or pertaining to altercations” for the Oct. 5 incident.

The city denied that FOIL request on two grounds: disclosure “would constitute an unwarranted invasion of personal privacy”; and the records were “compiled for law enforcement purposes.”

Tobin responded by limiting his request to just the video and arguing it could not be considered a private matter — since the alleged victim was threatening a lawsuit — and that it could not be considered a police record, since it was produced by Brown for its own use.

The most recent filing, dated April 20, represents Brown’s next legal step in forcing the city to provide access to the video.

Reach Gazette reporter Zachary Matson at 395-3120, [email protected] or @zacharydmatson on Twitter.

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