Post Star  |  December 5, 2018

Warren County has decided to settle a lawsuit with a local government watchdog who sued over the county’s refusal to release an engineering report.

Travis Whitehead won a round in his litigation in October when a mid-level appeals court ruled that his lawsuit should not have been dismissed in state Supreme Court and directed it be reinstated.

Whitehead sued when the county refused to release the report on a geothermal energy project as it negotiated a settlement with the developer for problems with the project.

Whitehead and The Post-Star had made Freedom of Information Law requests for the report, but county leaders called it a “draft” and wouldn’t release it, despite a Committee on Open Government opinion that labeling a document a “draft” did not preclude it from being made public.

Supreme Court Justice Robert Muller had dismissed the litigation when the report was released, after the county reached a settlement on the geothermal project. But the Appellate Division found that Muller should have considered Whitehead’s request for legal fees and costs, since Whitehead “substantially prevailed” in his lawsuit when the report was released.

So the lawsuit was returned to Supreme Court, but county leaders agreed last week to settle with Whitehead for the $370 in filing fees he requested.

The county Board of Supervisors Support Services Committee unanimously endorsed the settlement, after Whitehead made it clear he was not seeking legal fees on top of costs.

“I handled the initial Article 78 (lawsuit) on my own, so there are no fees,” Whitehead said.

Whitehead did have legal assistance with his appeal from attorney Cameron McDonald of the Albany-based Government Justice Center, which paid $400 in court fees to file the appeal and put an unspecified amount of time into the case.

McDonald was not seeking any compensation, but was satisfied with a precedent-setting Appellate Division decision, according to Whitehead.

“He was happy to get that appellate decision that clearly says the judge should have taken the (engineer) report, looked at it and made sure that everything that was factual and statistical before it was released,” Whitehead said.

Whitehead said he plans to donate the money he will be paid by the county to the Government Justice Center.

This was the second time Whitehead has sued over an issue with a FOIL request that was denied, and that report was eventually released as well.

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