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Sunshine Week: Every person’s right to know

Joe McIntyre/staff photographer

Clerk of the Legislature and FOIL Officer Eric Mulvihill sorts through documents at the Cortland County Legislature on Wednesday.

This story appeared in the March 10, 2018 edition of the Cortland Standard. To become a subscriber, email us, or call us at (607) 756-5665. Back issues available by request.

It became state law 40 years ago: You have a right to know what your government knows. And you have the tools to exercise that right.

Officially, New York Public Officers Law sections 84-90 and Public Officer law section 100-111 are known as the Freedom of Information Law and the Open Meetings Law. Colloquially, they’re called the Sunshine laws, because they force light into the potentially murky nooks and crannieswhere municipal and state governments sometimes operate.

Next week, Sunday to March 17, marks Sunshine Week, organized by the American Society of News Editors and the Reporters Committee for Freedom of the Press. It’s a nationwide recognition, marked by events in large cities — Washington, D.C., San Francisco and Phoenix, Arizona — and small — Bellows Falls, Vermont, Warren, Pennsylvania, and Sandy, Utah.

The sponsors are think tanks and journalists, but Sunshine laws are no more their tools than anybody else’s. In fact, they’re your tools, and here’s how you use them.


FOIL: How it works

Filing a Freedom of Information request is simple. Send a letter or email to the agency’s records access officer requesting records or parts of records under provisions of the state Freedom of Information law, Article 6 of the Public Officers Law. Try to be specific about what you seek, but the law requires only that you “reasonably describe’ the documents you seek.

Documents you can’t get with a Freedom of Information request:
• Are exempted from disclosure by state or federal statute.
• Would result in an unwarranted invasion of personal privacy if disclosed.
• Would impair contract awards or collective bargaining negotiations.
• Are trade secrets or would cause substantial injury to the competitive position of the subject enterprise.
• Are compiled for law enforcement purposes and could interfere with an investigation, deprive a person of the right to a fair trial, identify a confidential source or disclose confidential information relating to a criminal investigation, or reveal criminal investigative techniques.
• Would endanger the life or safety of any person if disclosed.
• Are inter-agency or intra-agency communications except if the materials consist of statistical tabulations or data, instructions to staff that affect the public, final agency determinations, external audits including ones performed by the comptroller and federal government.
• Are questions that will appear on an exam.
• Would jeopardize an agency’s ability to secure its information technology assets and infrastructure.
• Are photographs or video recorded under the authority of Section 1111 of the vehicle and traffic law. If not denying a FOIL, an agency can also submit its written notice that it received the request and will provide the records within 30 days.

SOURCE: Committee on Open Government


POLICE REPORTS

Six months worth of Freedom Of Information Law requests, from July to December 2017, sat clustered in a box in the corner of Deputy Chief Paul Sandy’s office Wednesday afternoon. He didn’t count them, he weight them: close to 20 pounds.

Most of the requests, Sandy said, were filed by three groups: “Insurance companies, lawyers and you,” he said to a journalist.

Insurance companies FOIL for different information — from motor vehicle accidents to loss of property, Sandy said. It’s an attempt to verify the insurance claim.

For example, Sandy said, if person’s new $2,500 golf clubs are stolen, the victim would file a police report. The insurance company would FOIL the report before reimbursing the client and taking ownership of the clubs.

“It’s to make sure you’re not double dipping,” Sandy said. “It’s preventing fraud.”

Lawyers file for reports to help a client collect restitution, Sandy said. If a person is assaulted and seeking civil actions the report can shed light on injuries to go along with medical costs.

Journalist use FOIL mainly for incidents, like crimes or accidents, with high public interest, Sandy said.

Sandy handles anywhere from one to 10 FOIL requests a day. “A vast majority of FOILs are honored to some degree,” he said.

Some may contain redaction. Information on pending cases is not disclosed. “We don’t want it to taint a case,” he said. “I try to give what I can without ruining a case.”

If he needs to, Sandy consults with City Attorney Ric VanDonsel or Cortland County District Attorney Patrick Perfetti. He may even contact Bob Freeman, executive director of the state Committee on Open Government, a FOIL guru.

“I go through and determine if I can release (information),” he said. “It does take time.”

MUNICIPAL GOVERNMENTS

In a typical year, the Cortland County Legislature clerk’s office processes 150 to 200 FOIL requests. Some come by mail, others by email. And some people walk to present them in person.

In 2017, most requests came from local residents and various agencies. Typically, residents requested documents related to Legislature projects, including the county jail. Among the agencies, such as energy businesses and law firms, requests came in for contracts and legal documents to see what they may be bidding on and figure out costs, said Clerk Eric Mulvihill.

One frequent request from agencies and companies is information from the Health Department for research purposes.

At times, requests must be directed to another agency — a government office is under no obligation to produce documents it doesn’t have. In August, Dryden Mutual Insurance Co. requested a fire report for a Cortland house. Mulvihill’s office did not possess the record and directed the company to contact the Cortland City Fire Department.

On average, Mulvihill said about 75 percent of requests are provided some level of information. “I’ve rarely had to issue flat out denials,” Mulvihill said. “They may not always get exactly what they are looking for, but I try to give them something.”

ELECTRONIC DOCUMENTS, TOO

In most cases, documents people request are readily available on the county’s website or as an attachment on an agenda, Mulvihill said. So a lot of his replies are just providing people with links.

In the past year, information regarding the county’s jail project was requested most frequently. Mulvihill said his office also gets a lot of requests from real estate agents for property investigations.

Answering requests is an added workload not only for the Clerk’s Office, but for other departments in the county as they are the ones looking for the needed information.

“It is an additional responsibility on top of the regular workload for departments,” Mulvihill said. “A lot of information is stored digitally, but there is a lot of time and effort that goes into getting all of it.

SCHOOLS TRANSPARENT

The FOIL requests sent to school districts last year came from agencies trying to ensure transparency, journalists and private citizens, be it the performance of district employees or a transcript of a meeting.

In some cases, districts have redacted documents line by line, but still provided them, as was the case when Dryden School District responded to an Aug. 22 request for the performance reviews and disciplinary action against a softball coach.

The unredacted information provides a timeline of events or minutae, such as the coach’s win-loss record, but not the substantive performance review, which is not accessible under FOIL.

Both Dryden and Homer saw FOILs about vendor payments — from American Transparency, founded by a former Illinois gubernatorial candidate with ties to the ultra-conservative tea party. It also saw requests for bargaining unit contracts for teachers, from the fiscally conservative think tank Empire Center for Public Policy, and for and bargaining unit contracts for administrators — from the Empire State Supervisors and Administrators Association, a professional organization.

Sometimes people make FOIL requests that cannot be granted — like the request to Dryden for performance reviews and disciplinary action against a softball coach. The district said the documents would constitute an unwarranted invasion of privacy, would also qualify as inter-agency or intra-agency materials and also could constitute student records exempted under the federal Family Educational Rights and Privacy Act.

NOT EVERYTHING ACCESSIBLE

FOIL has its limits. The law lists 10 categories of information that FOIL cannot access. And an agency can provide only documents that exist; it does not need to compile new information.

Therefore, a request for the self-evaluations of Dryden school board members in the 2016-17 year, resulted in only the blank form being released — no evaluations were completed, said Emily Shipe, district business administrator.

She did, however, release the superintendent’s evaluation in full, a document also requested and one that existed.

“The Committee on Open Government says that the category descriptions and ratings of an evaluation should be made available, but any narrative written by the evaluator can be withheld,” Shipe said, adding the narrative constitutes an unwarranted invasion of privacy and an opinion concerning performance, not a statement of fact.

Homer saw requests like the amount several Homer School District administrations spent for Fitness of Duty exams and a request from the Homer Teachers’ Association for a transcript from a public hearing on the proposed Truxton Academy Charter School.

Homer granted one request for contract agreements between the school district and bargaining unit representing its teachers, because collective bargaining units are public documents, said Homer Business Administrator Mike Falls, and provided partial information for another, from the Parents Foundation for Education, on the basis that providing phone numbers, gender, race/ethnicity, home address and personal emails of faculty and staff would be an unwarranted invasion of their personal privacy.

However, some of that information is already available publicly through other sources, such as voter registration records.

FOIL provided the Homer Teachers’ Association with a chance to get the facts it wanted about the proposed charter school planned for the former Hartnett Elementary School in Truxton, said Homer Teachers’ Association President Robert Nasiatka.. The union wanted to know the number of people who supported and opposed the school.

“There was a public forum and they had a stenographer there and we had no reason to videotape it because we knew we could just FOIL the district and get the information,” Nasiatka said. “It was beneficial to the district and to the HTA and the public, so it was very clean cut and we did what we needed to do with the information.”


Meet Pam Jenkins, Cortland County’s most prolific FOILer

Cortlandville resident Pam Jenkins had concerns a housing development near her was not following environmental laws.

She sent a Freedom of Information request to the town, seeking information on the build and found no storm water plan was in place.

She sent that information to the state Department of Environmental Conservation, which on Tuesday placed an enforcement on the build to comply with regulations.

That was not the first time Jenkins has used the FOIL process to collect information on an issue she is concerned about. For about the past five years, she has used the process to collect information from organizations such as the town of Cortlandville, Cortland County and the county Health Department. She files more FOILs with the county than anyone else.

What Jenkins FOILs, and how often, depends on the issue, she said. In some months she may not send any, but in one day she could send 10.

“I try to get information that can help me better understand the issue,” Jenkins said. “I can only process so much information.”

She only submits requests for pending issues, too.

The idea to submit FOIL requests came from a neighbor, Jenkins said. She was concerned about Cortland County’s proposed ash-for-trash plan — where up to 35,000 tons of Cortland waste would be exchanged for up to 90,000 tons of Onondaga County ash to go to the Cortland County landfill. Her neighbor said she can send FOIL request for documents on the plan, and she did.

She and others protested the idea, which the county eventually abandoned.

“I found with the documents their (Legislature) claims were not valid,” Jenkins said. “Thedocuments said one thing, while they said another.”

Jenkins said a FOIL request is a useful tool to see why people are making claims, and if those claims are valid.

Many times, her FOIL requests are, she said. She’ll appeal the denial if she knows the documents should be public.

Jenkins said the town and county clerks she has dealt with have always been helpful. She understands they are not the ones who block documents from being released.

Sometimes not getting documents through a FOIL request can be enlightening, too, Jenkins said. For example, some projects require a state-mandated environmental study. If the project is ongoing, and a FOIL request does not provide a report of that study, it could mean one was never completed.

Therefore, action can be taken to bring that to light.

“I feel like decision often made (in governments) are made in a black hole and the public is not included in the decision process,” Jenkins said.

– Nick Graziano


State’s top FOIL advocate has been at it for 44 years

Bob Freeman, the executive director of the state Committee on Open Government, has been the state’s top open-government advocate for almost 44 years.

In the late summer of 1974, Freeman started a temporary position with the committee after the Freedom Of Information Law went into effect. “Watergate was still fresh in people’s minds,” Freeman said.

Following the Watergate scandal that led to President Richard Nixon’s resignation, the federal government overhauled its Freedom Of Information Act, after which every state followed suit.

“The first version passed in a time of idealism,” Freeman said.

FOIL is important to Freeman because of what it represents. “It’s based upon idealism and democratic principles,” he said.

The process is important to the public because it allows people to submit a request under FOIL for government agency records.

Freeman’s job is to give advice, opinion and even training on FOIL to people — both private and officials.

Every year, 100,000 or more FOIL requests are submitted in New York, Freeman said. Tens of thousands of denials are appealed, and his office receives a copy of each one.

The term “FOIL” has even become common vocabulary, he said. FOIL is a noun, it’s a verb and it’s even an adjective.

People should know FOIL exists, Freeman said. “Every state has some sort of access,” he said.

— Jacob DeRochie


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