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In Depth: FOIL'd Again

November 09, 2017 06:26 PM

It's what the state government isn't telling you that's a problem for some New Yorkers.

When state lawmakers passed the Freedom of Information Law or FOIL 40 years ago, they declared it was your "right" to know what the government was doing. However, using that law to find out where your money is going is becoming increasingly difficult for some.

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In his inaugural speech, Gov. Andrew Cuomo promised transparency. 

"I will lift the veil of secrecy that now surrounds Albany and I will communicate in every way I can - ways never used before," said the governor back in 2011.

Six years later, people like Mike Elmendorf with Associated General Contractors of New York State say the veil is still there.

"That's not how this is supposed to work. It should not be that difficult for citizens, the media, stakeholders, anybody to get insight into what their government is doing," he reasoned.

Journalists have encountered the same problems using the Freedom of Information Law or FOIL.

As part of our investigation into the dangerous working conditions in youth detention centers, WNYT wanted to find out how many workers had been injured by convicts and how much workers comp costs you. The commissioner couldn't tell our reporter – and WNYT still has not received those lists after five months. 

Behind the desk of WNYT’s investigative producer, the list of delays on information of potential government wrongdoing goes on and on. 

Even when we do get information, sometimes it is not everything we asked for. 

Back in 2016, WNYT wanted to find out who in the state knew about PFOA in Hoosick Falls drinking water and what the state did about it before they told residents to stop drinking from the tap.  

NewsChannel 13 asked for every correspondence. Nearly a year after their legal deadline and after we pushed them more, the state gave us a six-page lab report and nothing else.

However, NewsChannel 13 had obtained emails on PFOA from the state by other means - emails we requested, but were not sent.

In May, WNYT wanted to know how much it costs to keep the Governor's Mansion open and running and how much time the governor really spends at the taxpayer-funded house instead of in New York City.

Our request was extended for five months. We only got what we were asking for after telling the governor's office we were doing this story.

Once the state denies your request and your appeal, you can go to court. However, that costs money regular citizens might not have. Meanwhile, the state uses your taxpayer money to argue that you don't have the right to see how they're using your other taxpayer money.

"We have requests that have been delayed and extended in some cases as many as 10 times," pointed out Elmendorf.

He's filed over 80 FOILs trying to uncover if the state is writing bid requirements for construction jobs fairly and realistically.

He's gone to court over his right to the information and won. The judge ruled two agencies had to hand over the information and two other agencies admitted they never even had the information in the first place.

"The way FOIL works, if you ask for something that doesn't exist, that's an easy one for the agency. ‘We don't have any documents that are responsive to your request.’ You shouldn't have to go sue them to then get an acknowledgment that, in fact, what you're asking for doesn't exist," he reasoned.

Bob Freeman has been the state's expert on FOIL since it became law in the 1970s. Freeman says in the digital age, it's easier than ever for the state to find information, but a state worker still has to read through it to see what can be withheld under law - and perhaps find what might be embarrassing.

"I have said this 1,000 times publicly - embarrassment is not one of the grounds for withholding records under FOIL," said Freeman.

Freeman says that's the whole point of the law. We wouldn't need FOIL if the government didn't do embarrassing things.

"I do think that there is perhaps a greater degree of sensitivity, but it's not so different from predecessor administrations. You know, nobody likes to disclose whatever it may be that's embarrassing," he noted.

There is a bill in front of the governor to require the state to pay your attorney fees if you prove in court they had no reason to withhold information from you. Freeman says the idea is to encourage the government to comply with the law. 

There are common sense exceptions where the government can withhold information to protect personal information about employees or trade secrets.

The governor's office wouldn't do an interview with us, but they sent a statement Thursday, writing:

"Transparency of government operations is an essential piece in any democracy and State staff work hard to ensure that New Yorkers have access to the information that they are entitled to. Each year, state agencies receive tens of thousands records requests and many times, just one request may include thousands of pages of documents. Those documents must then be reviewed to ensure that any disclosure meets an array of legal requirements that have been affirmed by a number of different court decisions. Our Records Access Officers always work hard to expedite the process when possible and any insinuation otherwise represents a fundamental misunderstanding of the process."

 

On Background: 

  • Every time a Records Access Office receives a request, staff familiar with the documents being requested, working at sites across the state, conduct extensive reviews in a multitude of locations, both digital and physical, to find responsive records and compile them for review. This is a process that takes time. 
  • Over the past three years, state agencies have processed‎ approximately 240,000 FOIL requests.
  • Your communications with each agency’s record access office explain the reasoning, legal or otherwise, for each response.

DOH FOIL:

  • As stated in your communications with DOH Record Access Office, many of the documents that you have requested were exempt because they are inter-agency or intra-agency materials which are not:
    • Statistical or factual tabulations or data;
    • Instructions to staff that affect the public;
    • Final agency policy or determinations; or
    • External audits.
  • All of the decisions made by DOH are in accordance with State law, which has been validated on numerous occasions by the court system.

OGS FOIL:

  • You should have already received the records that are responsive to your request.
  • The Executive Mansion is far more than a residence - it is a museum that offers free public tours and an active State Police barracks. The property is on the National Registry of Historic Places.
  • It belongs to the people of the State of New York and as an historical building, it is required to meet high maintenance standards.
  • It should be noted that the capital costs contained in your FOIL response were all associated with required maintenance including roof repairs, fence repairs, structural repairs, masonry work, electrical, etc.  

OCFS FOIL:

  • OCFS Records Access Officers are working diligently on your request and as noted in their communications with you, a legally allowed extension is required in order to properly meet your request.

Credits

Asa Stackel

Copyright 2017 - WNYT-TV, LLC A Hubbard Broadcasting Company

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