FOIL or foiled?

The legislature hereby finds that a free society is maintained when government is responsive and responsible to the public, and when the public is aware of government actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government…

…The people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality. The legislature therefore declares that government is the public’s business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article.

– from the Legislative Declaration of NYS’ Freedom of Information Law

By Giovanna Righini with Tanya Garment

In 1974, legislation was approved to enact the original Freedom of Information Law (FOIL) in New York State. For the first time, the general public was granted right of access to government records. The law plays an important role in keeping government transparent and accountable and speaks eloquently to this end in its Legislative Declaration.

The process that the public may follow to obtain records is laid out by the New York State Committee on Open Government (COOG). Their website provides a wealth of information, including sample letter templates, information on access to agency records, required time lines, and advisory opinions. Since FOIL is somewhat fluid and, like any law, is subject to interpretation, it requires a good faith effort by both the public and the government to work. The following story details a lack of that effort on the part of the City of Kingston.

On April 15, 2020, Tanya Garment submitted a FOIL request to the City of Kingston for any and all email and text communications between and among Mayor Noble and various specific City employees regarding the proposed merger of Department of Public Works with the Parks & Recreation Department and the Environmental Education and Sustainability Coordinator’s role and office location, from March 1 to April 14, 2020. She made the request in order to find instructions to staff that would help her to understand the steps of the proposed merger’s process, particularly because the proposal would have provided the Mayor’s wife with a job promotion and substantial pay increase.

VIEW 4.15 FOIL Request

On April 20, Tanya was contacted by the City Clerk who asked, on behalf of Kingston’s Corporation Counsel, if the FOIL request could be closed out since the proposed merger had died in Council Committee. Because the Clerk expressed concern about the amount of work it would take to review all the emails, Tanya initially agreed over the phone to retract her request. A few hours later, however, after she’d had time to think about it, Tanya decided she didn’t want to retract the full request but was willing to reduce the scope of it by narrowing the time frame to April 1 through April 14, 2020. She put this in writing to both the City Clerk and Corporation Counsel’s Secretary by email, left a voicemail to that effect for the City Clerk and spoke directly to the Secretary about it. The very next day, her full original request was denied.

VIEW 4.20 FOIL Revision
VIEW 4.21 FOIL Denial

The denial contained no information about why the request was denied, other than a brief claim that the documents contained “interagency” material and that none of the exceptions applied. There was no indication that the City even made an effort to search for or review the materials requested and the denial failed to include information on how to appeal. The Clerk was unable to provide the appeal information and directed Tanya to ask the Assistant Corporation Counsel. He then identified himself as the Appeals Officer.

Seeking input, Tanya reached out to share the denial with me. We decided to research the matter and found that, amongst other things, the City’s lack of information on how to appeal went against regulations set forth by the COOG to govern the FOIL process. We decided to dig in together and follow the FOIL through to the end of process – to educate ourselves and make it clear that we were paying close attention to the City’s actions.

From there, we followed guidelines provided by the COOG and reviewed some helpful information about the FOIL process written by The Civil Rights and Transparency Clinic at University at Buffalo School of Law. The Transparency Clinic also provides informational FOIL workshops free of charge to the public. Tanya decided to submit an appeal on April 23 and noted all of the City’s actions leading up to her FOIL denial in this appeal. She also stated that one of the exceptions actually would apply since the materials may “provide instructions to staff that affect the public” and how staff had been directed to proceed accordingly. She provided language that appeared consistently in COOG advisory opinions that we researched in order to substantiate this.

VIEW 4.23 FOIL Appeal

Then, things really got interesting. On May 5, Tanya received a denial of appeal from Kingston’s Assistant Corporation Counsel, which was full of legal gobbledygook and at least one patently false statement. He claimed that her appeal was moot since she had “withdrawn” her request and the denial decision had been rendered after the withdrawal. It went on to say that the reduced time line would be treated as a separate FOIL request, which made no sense as a decision had already been rendered for the original time line request. Additionally, the Assistant Corp Counsel cited the Governor’s Executive Order 202.8 as an excuse for tolled FOIL time limits.

VIEW 5.5 FOIL Appeal Moot

We felt that the City’s denial, although sloppily conceived, was designed to be legally intimidating. In our minds, this did not sit well at all with the intent of FOIL to provide transparency in local government. And it worked against fair treatment of someone seeking information from their government who did not necessarily have the means to seek advice from a lawyer.

On June 24, as her final step in the FOIL process, Tanya sought an advisory opinion from the COOG regarding the City of Kingston’s approach and response in handling her FOIL request. She wanted to know if it was appropriate for the City to split her request the way they did and framed some specific questions for the Committee. Short of litigation, getting an advisory opinion can be a procedural way to call out an agency that is not operating in good faith.

The COOG’s response was very telling.

VIEW 6.24 COOG Opinion Request
VIEW 6.29 COOG Opinion

What was immediately clear to us was that the Office of Kingston’s Corporation Counsel had misled Tanya in their response to her appeal, most likely in an effort to just make her go away. The COOG opinion was that the Assistant Corp Counsel’s contentions were not consistent with the facts as presented – since Tanya was willing to reduce the scope of her request and had put the City on notice of this, the request should not have been considered withdrawn and split. The City rationale wasn’t even logical because they had already rendered a decision. Given the timing of the denial, there was no way the requested records could have been adequately searched and reviewed for the decision, as necessitated by law. The COOG also noted that tolling the FOIL time limits was not supported by any Executive Orders relating to the COVID-19 state of emergency.

In this particular instance, Corporation Counsel really went out on a limb, almost to the point of legal absurdity, to protect the Executive and essentially thwart Tanya’s request, rather than work in the spirit of the law with a member of the public seeking information. It is a disturbing and unacceptable state of affairs for an administration that claims a commitment to transparency. To date, Tanya has received no further response or communication regarding her FOIL, despite the COOG advisory opinion. Any member of the public following a process in accordance with the law should expect to be treated fairly by their government, which failed to happen here. 

Even though Tanya hasn’t gotten access to any records, the COOG advisory opinion validated all of our efforts by daylighting some very questionable practices. And, despite the disappointing actions of the City of Kingston, it was still an incredibly empowering and educational experience to work through the FOIL process.

Now, more than ever, it is critically important to know your rights and engage as a citizen. With a little research, we found that there are fantastic resources to help guide civic engagement and FOIL is a valuable tool available to everyone working towards greater transparency and accountability in their local government.

RESOURCE LINKS

Department of State Committee on Open Government: FOIL Requests

Civil Rights and Transparency Clinic contact: law-clinic@buffalo.edu