Judge to sheriff: Release info on fire or say why not

— Photo from Inspector Lee Bormann, Albany County Sheriff's Office
After the fire: A drone from the Albany County Sheriff’s Office photographed the remains of 42 Creamery Road in Westerlo, a home owned by David and Lee-Yin Lewis, after a 2017 fire.

WESTERLO — A judge’s decision on Tuesday is the latest step in David Lewis’s quest to discover details of the fire that destroyed his Westerlo home two years ago.

His family’s way of life was forever changed, Lewis says.

Lewis and his wife, Lee-Yin, and their son, Thomas, were all athletic, Lewis said, with he and his son playing hockey together. After being burned by the fire and intubated because of smoke inhalation, they can’t do much physical activity without having trouble breathing. Lewis said, too, that their life expectancies have been shortened.

The family has left the Hilltowns to live near the ocean, to help Thomas breathe better, while still being close to a hospital.

Lewis has been trying to find out if the fire was started intentionally, and filed an Article 78 lawsuit on Aug. 14, 2018 to obtain more information about the fire that burned down his home at 42 Creamery Road on May 22, 2017. The Albany County Sheriff’s Office is withholding some information because an investigation into the fire is still being conducted, court documents say.

On Tuesday, Albany County Supreme Court Judge Christina Ryba issued a decision that the sheriff’s office has 20 days to either release the requested records, or give more precise reasons why the records would be redacted or denied.

Lewis said on Tuesday afternoon that he is grateful for Ryba’s “careful consideration” of the suit, and he is looking forward to receiving the full records pertaining to “the fire that destroyed our house and uprooted our lives.”

The state’s Office of Fire Prevention and Control and the Westerlo fire company all did not receive information on the investigation from the sheriff’s office, the lawsuit states. Lewis also said that his insurance company did not receive information. Despite this, he said that his insurance claim went through over a year ago.

Lewis and Jenna Jagodzinski are both plaintiffs in the suit. Jagodzinski is a fire and explosion consultant with Fire Research and Technology, LLC, in Sodus Point, in Wayne County. Lewis said that the firm investigated the cause and spread of the fire. Jagodzinski also filed the initial Freedom of Information Law request, which was first denied and then approved, but the information that was released was heavily redacted.

Article 78 proceedings are typically initiated by citizens to question a governmental decision.

The lawsuit asked that Lewis be given all the records he requested unredacted or that there be a court-ordered “in camera review of the records to evaluate their discoverability as well as the supposed basis for Albany County’s substantial redactions.” The suit also requested that Lewis’s attorney fees be paid, but Ryba declined to allow this at this time.

The Westerlo Volunteer Fire Department responded to the fire call in the early morning hours of May 22, 2017. According to the lawsuit, the fire department turned over the investigation to the sheriff’s office later that afternoon.

The fire

Lewis said that he was awakened by the sound of a smoke alarm at 1:30 a.m. on May 22, 2017. He, his wife, and their son all were burned as they left the building and all inhaled smoke from the fire.

To prevent their throats from closing up, they were intubated — meaning a tube was passed through their windpipes to their lungs. Thomas was intubated the longest and had scarring on his throat that ultimately led to him having a tracheotomy, said Lewis.

Crews arrived around 20 minutes after the first 9-1-1 call was made from a neighbor’s house, said Lewis in a complaint he says he filed with the state’s health department in March 2019, despite it being a seven-minute drive from the station. Volunteers would have had to have traveled to the firehouse from their homes before they could board trucks to get to the scene of the fire.

In the complaint, Lewis specifically names Kenneth Mackey, the captain of the Westerlo Rescue Squad, when describing the delay.

Lewis told The Enterprise on Monday that he believes the delay was due to a second 9-1-1 call that was made after the Lewises’, stating that shots were fired. A transcript and a recording of the dispatch confirms a second call was made.

Lewis is asking that the identity of the caller be released, suspecting foul play, possibly with an individual he said was stalking his family.

Additionally, Lewis is concerned that hospital staff was unaware that the smoke he and his wife and son inhaled could have included burnt spray-foam insulation, which is highly flammable and can produce toxic chemicals.

Kevin Flensted, who was Westerlo’s fire chief at the time, and Mackey both told The Enterprise on Monday they were not aware of a second call saying shots had been fired, but both said that the time emergency responders arrived was reasonable.

Health concerns

Lewis said that he, his wife, and their son were all put into comas and intubated at Albany Medical Center. When Lewis woke, he found he had been transported to the Clark Burn Center at Upstate Medical University in Syracuse; he was strapped to the bed and still intubated.

Although he wasn’t aware of it at the time, his wife was in the room next to him and their son was upstairs. Lewis was released after three days; his wife after four; their son remained at the Clark Burn Center for eight days, Lewis said.

All three Lewises now have tracheal stenosis, or narrowing of the windpipe, Lewis said.

Thomas, with greater complications from being intubated longer, had scar tissue on his larynx that made him unable to speak above a whisper and also gave him difficulty breathing, to the point that a few months later he had a tracheotomy at a hospital in Westchester County, said Lewis.

“In stasis”

Lewis grew up in Rensselaerville before working on Wall Street, he said. He sold his company in 1999 and left to live in Southeast Asia for a time, and then returned to the Hilltowns with his wife to raise their son.

Lewis said he was able to live off the money saved from selling his business. He and his wife started a soap- and candle-making company, Ladybug Soap, with the main production site located at their farm in Freehold, in Greene County. They had a second home as well as the ones in Freehold and Westerlo, he said.

Although Flensted, as fire chief, had noted that there were flammable materials used by the business on the Lewises’ property, Lewis said that the investigator he had hired determined there was no fire in the basement where Ladybug Soap operated.

He showed The Enterprise pictures taken during the fire in which the basement window was dark while bright flames burned in other parts of the house.

Lewis and his family lived in their house in Freehold after the fire. But, after realizing on a vacation that his son fared better breathing ocean air, the Lewises moved to Cape May, New Jersey, close enough to the Westchester County hospital while still being near the ocean, he said.

The Lewises’ son has had three other surgeries since his tracheotomy and needs two more, but his family is waiting because it appeared to have stunted his growth, said Lewis.

“We’re kind of in stasis,” he said.

Seeking information

According to the lawsuit, a Freedom of Information Law request was made by Jagodzinski on Jan. 25, 2018, to continue her investigation. Albany County Sheriff’s Chief Deputy Kerry B. Thompson responded the same day the request was filed with a letter refusing to produce the requested records since an investigation by the sheriff’s office was ongoing.

The denial was appealed on Feb. 9, 2018. Six days later, on Feb. 15, FOIL Appeals Officer and Albany County Legislator Chris Higgins granted the request but the records were “heavily redacted and provided no substantive information,” according to the lawsuit.

Three-and-a-half pages of remarks on a dispatch report were redacted; information about associated persons in the sheriff’s report was redacted; and the narrative provided by the two sheriff’s officers involved was redacted.

In Ryba’s May 17 decision, she notes that some records were not given to Lewis at all, with the reason given that the investigation was still ongoing, which she said was an inadequate reason.

On July 19, 2018, Lewis’s attorney then wrote, asking that the unredacted records be released.

In the appeal letter, an opinion written in 2009 by Robert Freeman, executive director of the state’s Committee on Open Government, was cited, which states that criminal investigations are not necessarily exempt from the state’s Freedom of Information Law and that the coverage of such investigations in the news brings them into the public anyway.

Tracy Murphy, an attorney for Albany County, informed Higgins, the FOIL appeals officer, in a letter on July 26, 2018, that the sheriff’s office had advised the county that the investigation was still ongoing.

Higgins wrote to Lewis’s attorney on Aug. 2, 2018, that, because of the ongoing investigation, he could not release the redacted information, but said he believed he would be able to do so once the investigation was complete.

Thompson stated in the denial that the information would fall under two of the exemptions to the state’s law:

— That the release of records could interfere with a law-enforcement investigation, and

— That it could endanger the life or safety of a person.

In court documents, Lewis’s attorney argued that the investigation should have been completed by now, almost two years after the fire. He also argued that the sheriff’s office could not be specific about the reason these exemptions are applicable and that the redactions are not relevant to the case.

Lawyers representing the Albany County and the sheriff’s office responded to the suit’s allegations on Sept. 10, 2018, denying that Lewis has a clear right to the unredacted records or that they had failed to properly invoke the exemptions stated in denying the unredacted records.

The response also denies the allegation that the sheriff’s office has had enough time to complete its investigation, and that the investigation is a valid reason to withhold information.

In her May 7 decision, Ryba agreed with the argument that the sheriff’s office did not provide a sufficient reason for withholding information, saying that its explanation was “no more than a mere parroting of the statutory language, which is patently insufficient.”

She states that the sheriff’s office has 20 days to either provide all that was requested in the initial FOIL request, deny the request with a description of each of the documents withheld with the reason for withholding them; or provide redacted documents but include an explanation of how the exemption used justifies the redactions; or certify that the requested documents are not in their possession or could not be found.

Sheriff Craig Apple’s office did not return calls seeking comment.

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