In terms of behind-the-scenes political maneuvering, people often say that sunlight is the best disinfectant; an expression made popular by former Supreme Court Justice Louis Brandeis. Supporters of New York’s Freedom of Information Law might consider it the source of pure, glistening ultraviolet rays.
The law, known also as FOIL, allows anyone access to government documents for a number of purposes, and the person requesting the documents does not need to provide an explanation.
The Committee on Open Government, an advisory organization that offers opinions regarding FOIL, states on its Web site at www.dos.state.ny.us/coog that `any New York state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function is subject to the law.`
The law does not apply to private entities.
`We see it used every day; information about how the government functions. It’s important especially now, two weeks before the election,` said Bob Freeman, the executive director for COOG, and one of the state’s leading authorities on FOIL, in an Oct. 21 interview.
Freeman said the law can be used by citizens, reporters concerned with the activities of government officials and even government officials themselves.
In another example of the law’s many uses, an advisory opinion penned by Freeman in December 2005, cited the ability of companies to use it for commercial purposes.
`It’s a diverse law. Anyone can make a request regardless if you are from New Scotland or Timbuktu,` Freeman said.
`There are records practically dealing with everything.`
When used commercially, however, FOIL cannot be used to obtain lists of names and addresses for fundraising purposes, as it would constitute and `unwarranted invasion of property.`
The law at work
When a FOIL request is made, the governing body must respond within five days to inform the person making the inquiry that they are looking into the request. The governing body has 20 days to either comply or provide a written response as to why the records could not be obtained.
The law does have some limitations that allow for the withholding documents that would `be an unwarranted invasion of personal privacy,` would inhibit a criminal investigation, are protected by state or federal statute, or would endanger the life or safety of any person.
Also, the law does not require the information access officer fulfilling the request to compile or create a document. It only pertains to documents that already exist.
Freeman cited a few instances where FOIL had a tangible, direct impact on government and citizens, including `Troopergate,` where state-funded surveillance was questioned regarding former Gov. Eliot Spitzer and former Senate Majority leader Joseph Bruno.
Freeman also cited a local attorney who was required to repay money for pension abuse, and school attorneys being paid on the books for full-time jobs in as many as five different school districts as results that came about following a FOIL search.
Beyond shedding light on graft or abuse of power, FOIL can be used by citizens trying to get access to documents that have a direct effect on them.
One such instance Freeman described involved a woman who called his office Monday, Oct. 20, and asked about using FOIL to check the certification of her daughter’s special education teachers.
`These are critical issues,` Freeman said.
The law, he said, has a variety of uses to save taxpayers money.
He cited a recent news story that used information gathered from a FOIL request to bolster the reporting about people who dodge their E-ZPass bills. As a result of the information, the state hired a collection agency and collected millions of dollars in money owed.
Who’s FOILING whom?
Freeman said that while all citizens are allowed equal access to FOIL documents, some should be expected to go out of their way to use the law to their advantage.
`The media has no special rights, but special responsibilities,` he said. `They are the eyes and the ears of the public.`
Freeman said some people even FOIL other FOIL requests. He said it is commonly done when reporters are trying to get a heads up on what other reporters are looking for.
`It’s an old reporter’s trick to see what everyone else is up to,` he said.
Government officials can use the law the same way a citizen or reporter can, and in one case in October, the law was at the heart of a controversy involving a recent lawsuit by Albany County Minority Leader Christine Benedict, R-Albany, against District Attorney David Soares, alleging Soares failed to comply with a FOIL request.
The lawsuit charged that Soares didn’t provide information requested by Benedict dealing with correspondence from his office. The request was made April 29, according to the written statement, and the denial was made May 19.
It states further, that on June 10, an appeal was made to Bryan Clenahan, D-Guilderland, and the chairman of the Albany County Legislature Law Committee. Clenahan made a ruling that Soares wrongfully withheld information, and recommended the district attorney comply with the law.
After an appeal by Soares, Clenahan maintained his position that the information should be made public. Benedict’s office claims that as of Tuesday, Oct. 20, the information, regarding correspondence with Richard Arthur, the director of administration for the Albany County District Attorney’s Office, has still not been released.
Information
gatekeepers
Most localities have individual FOIL officers, as do most counties. Those officers deal with a number of requests each week, and are responsible for answering them and directing them to the appropriate party.
`We usually get about 90 to 100 requests per year,` said Geoffrey Hall, the records information officer for Schenectady County.
He said those requests are often diverse, and it is usually the case that he will deflect the request to other departments.
`I’m kind of the clearing house,` Hall said. `The county is a diverse enterprise.`
Hall said almost all of the FOIL requests make their way to his office, even the ones sent directly to other departments, and he keeps a file of each of them.
Saratoga County public access officer Barbara Plummer said she often receives as many as 125 to 150 requests each year.
She said many requests come during lawsuits where people are concerned with contracts that the county has entered into. She also said a good deal are concerned with the sheriff’s department and property value.
`There are lots of requests for lists of property owners who have not paid their taxes,` Plummer said.
She also said people will ask for a list of 911 calls to see what crime has been responded to.
She said soon, though, almost everything will be available online and there will be no need for requests. The town’s assessments records are already completely online, and more information is put online each day.
Freeman said the COOG is getting ready to make its annual recommendation to the legislature about improvements to the law. He said lately government officials have taken a closer look at those recommendations and have implemented some of them.
Recently the law put provisions in it that mandate any information that could reasonably sent via e-mail must be sent electronically, thus sparing the recipient the 25-cent per page fee to reproduce the documents. “