Friday, June 29, 2012

The Rest of the Story

Yesterday, in a comment on this blog, Alderman John Friedman (Third Ward) criticized me for "clucking" about the chicken law instead of reporting on a very tentative and preliminary discussion in the Legal Committee about creating a nuisance abatement law that would hold property owners responsible for problems created by tenants in their buildings. The kinds of problems mentioned were illegal firearms, drugs, domestic violence, child abuse, and howling dogs. Tom Casey has a story about that discussion in today's Register-Star: "City's Legal Committee discusses landlords, housing."

The third issue taken up at Wednesday's Legal Committee meeting was Mayor William Hallenbeck's request that the mayor's office become the "sole records access officer" for FOIL requests. His stated goal in making the request was to ensure that FOIL requests are responded to in a timely way. As it works now, FOIL requests are often made to individual department heads, as well as to the city clerk. Hallenbeck wants all FOIL requests to be directed to his office and all material collected by departments gathered there and sent out from there.

Friedman expressed concern that such centralizing would create a bottleneck. He also observed that, as it works now, "it would take three people in collusion to keep me from getting the information" and opined that "multiple avenues to get information is better than it all going through one way."

City attorney Cheryl Roberts reminded Friedman that there are "things that have to be redacted" from information provided in a FOIL request and reiterated that the mayor's request was "not an attempt to withhold information."

The committee moved to forward to the Common Council for consideration a resolution making the mayor's office the sole records access officer.


  1. Roberts' remark to Friedman to the effect that centralizing the request mechanism was "not an attempt to withhold information" is a straw man argument.

    Mr. Friedman is looking closely at the idea of establishing a means whereby withholding information can occur in future, possibly years from now in a subsequent administration.

    Typically, and without looking like she was doing so, Roberts managed to make an honest and abstract concern about good governance into ad hominem innuendo. Her stock and trade!

  2. It's not just a bottleneck that's concerning me about centralizing FOIL requests under the Mayor. Regardless of who is in the Mayor's chair, such centralization of public information is an invitation for intervention or ... worse. Attorney Roberts' concern for redaction is out of place, considering redaction should be happening now by each department as a matter of course.

    If anything, FOIL requests should be handled by someone with some working knowledge of the FOIL laws and not by a political office holder.

  3. Folks, though skepticism of the City's motives is of course warranted, in fact this is a long-overdue step in the right direction.

    Those of us who have submitted FOILs to Hudson over the years have been calling for such a correction for some time.

    Hudson's method of addressing FOIL requests has been FUBAR and contrary to the Freedom of Information Law since at least the middle of the last decade. Agencies are legally required to have a central records access officer, and the City as a whole is an agency.

    This is necessary so that citizens don't have to FOIL every department separately, or to guess where pertinent records might be, or to file separate appeals if multiple sub-agencies deny that appeal (explicitly or constructively). This is something I have discussed in depth with the NYS COOG, and brought to the City's attention many times, including quite recently.

    I'll be posting about this in more depth on my blog, but the short version is that we should welcome this correction. Of course, a rogue attorney, politician or appointee can always gum up access to records, and indeed Roberts has been overzealous in redacting and/or withholding documents... But that already could occur, and the fact is the past practice of fragmenting the process and saddling the City Clerk with the unenviable task of cajoling disparate department heads, committee chairs, etc. was not working. More crucially, it was not in compliance with the letter or spirt of FOIL.

    Bottom line: Under FOIL, the City *has* to have a central records officer, and there are good policy reasons to do so. The problems which crop up with redactions and denials are political, and crop up either way. This change at least eliminates one of the bureaucratic SNAFUs that was making things doubly difficult.


  4. If centralizing Hudson's FOIL procedure implies hiring new staff, a Records Access Officer, I'd prefer keeping things the way they are and then sidestepping the rogue attorney by providing the council with its own counsel.

    Of course I am mixing apples and oranges, but for years we've had a problem with a single attorney who was never happier than when she was at the nexus of some conflict of interest.

    So far this is the same individual who's had a hand in either satisfying or rejecting all of my FOIL requests. For my purposes, she is already the de fact Records Access Officer of Hudson.

  5. I have some experinece with FOILs -- on both sides of the fence -- and would agree with Sam about the need to have one records (or FOIL) officer for the City. (The school district has one). And the notion that things can be redacted from documents is a very dangerous one. In fact, I just got a copy of an advisory from Robert Freeman, the state's chief FOIL guy, which states that records are presumed public unless they meet some pretty stringent standards for redacting. Also, though I don't know how effective it has been, the law was recently changed so that an agency that didn't comply would have to pay for legal fees of the petitioner.

  6. 1. There should be no need to hire new staff to handle FOILs.

    2. Currently, the City brings an attorney to bear on all FOILs, and that will continue whether or not it makes this necessary policy change.

    3. The State provides many free opportunities for whoever gets designated Records Access Officer (and any other interested public officials) to learn what they need to know to comply with FOIL.

    4. The Common Council is hardly the only City agency subject to FOIL, and whether or not it gets its own lawyer is a separate question.

    5. The bigger problem, and the reason that the City Attorney winds up incurring billable hours on FOILs so often, is that Hudson still seems to view public information as something to hide. FOIL presumes that all public records must be disclosed, and strictly limits the exceptions. To save money and make the process efficient, the City needs to reverse its core assumption that it wants to find reasons to redact or deny records, and not lawyer up every time it gets a request.

    6. I have had at least one situation where I foiled both the State and City, and got the same records back from the State before I got them from the City, and the City versions were redacted, but the State ones were not. This pretty much sums up the overzealous, overprotective attitude prevalent in some parts of City Hall to disclosing records that the taxpayers pay for.