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New York's transparency problem

News 4 Investigates puts Gov. Cuomo's transparency pledge to test

Gov. Andrew Cuomo promised to manage “the most transparent” administration New Yorkers have ever seen.

The reality is that his administration continues to keep a tight lid on public records or takes months to respond to even the most basic requests for information. 

News 4 Investigates from May through August filed Freedom of Information law requests with every state agency listed on Cuomo’s “Open FOIL NY” portal. The portal, which Cuomo revealed to the public in June, makes it easier to file a Freedom of Information (FOI) request.

Most requests filed by News 4 Investigates asked for salary compensation data for all state employees, from each agency. We also filed separate requests unrelated to salary data with a nonprofit arm of Empire State Development Corporation and the New York State Department of Transportation.

Proponents of open records laws said that filing a request for information from the state government was never the problem.

“The real problem is getting the response,” said Paul Wolf, president of the Buffalo Niagara Coalition for Open Government.

“It shouldn’t take months, in some cases years, to get information.”

Indeed, News 4 Investigates waited months for documents.  In fact, state agencies only began to release data that WIVB requested after asking the governor’s office on Oct. 24 for comment on his administration’s refusal to release public records.

The governor’s office did not respond.

Our requests for documents from Empire State Development's nonprofit arm and a few other agencies are still being processed.

A handful of state agencies took at least a month to decide that the New York State Office of General Services is the best agency to respond to WIVB's requests.

State authorities sent us to New York State Authorities Budget Office website to find salary compensation data. One agency claimed the request for compensation data was “overly broad and not reasonable described” and another sent the data in locked spreadsheets without the passwords, rendering the data useless.

Government records help inform the public on a wide range of topics, from contaminated land near their homes, to economic development projects in your neighborhood, to basic payroll data.

“Government maintains records about all of us from birth to death and everything in between,” said Robert Freeman, the executive director of New York State Committee on Open Government.

“And often in our daily lives as plain ol' people, we need information from government to make decisions about the course of our lives, and especially in so many instances, about or families.”

Proponents of the law argue it lacks teeth.

For example, the law lacks sanctions for agencies that wrongfully withhold public information.

Requestors can appeal a decision to withhold records by a government agency. But if that appeal fails, a lawsuit is the only option left when government denies access to records using any of the 10 exemptions provided by the law. 

“That could easily cost $10,000 to $20,000,” Wolf said about suing the government for access to public records.

Cuomo did sign legislation last year to require judges to award attorneys’ fees when state agencies block access to public information, which garnered applause from Freeman and other proponents of open records laws. But it hasn't changed how government is responding to information requests. 

Assemblyman Sean Ryan (D-Buffalo) said the FOI request portal and the new bill that adds attorneys’ fees are steps forward, but more work needs to be done.

“What are we hiding? We’re not hiding anything,” Ryan said.

“So, let’s just make it available. But also make it so people like you or concerned citizens, they don’t have to jump through a lot of hoops to get what is already theirs.”

Right to know

The public’s right to information held by the government is a cornerstone of democracy that promotes transparency and holds government agencies accountable to the people.

The state legislature enacted New York’s Freedom of Information (FOI) law in 1974. Freeman became the executive director of the state’s Committee on Open Government launched in 1976.

The FOI law requires any local and state government agency to acknowledge receipt of the request within five business days and provide the records within 20 business days. If more time is needed, the government agency must give a reason for an extension, but they rarely do.

Extensions under the Cuomo administration can drag on for months, sometimes years. When state agencies do fulfill requests, they can be incomplete or have information blacked out on the documents.

“Andrew Cuomo campaigned saying he was going to be the most transparent governor ever,” said Wolf.

“And I can tell you from my perspective, as someone who pays attention to these issues, he’s far from it. He and his administration is very resistant to disclosing information.”

In 2017, The New York Times won a lawsuit to compel Cuomo to release documents tied to a corruption investigation and big-rigging scandal that involved the Buffalo Billion and other economic development programs. Cuomo’s administration spent more than $200,000 of state funds to fight the lawsuit.

“There’s a culture in government that ‘we don’t want to disclose information, we don’t have to disclose information’ and they can get away with it because the only way you can challenge them is in court,” Wolf said.

Resistence

Getting access to public information held by government is easier said than done, Wolf said.

“I’m surprised at how thin skinned they are, a lot of elected officials,” he said.

“While it takes a big ego, I think, to run for office, they’re very defensive, they’re very thin skinned, they’re very paranoid. So their immediate reaction is to resist and withhold.”

Some agencies only have one or two employees who work on processing FOI requests. That can delay the process, experts said. And a one-stop-shop to process requests for different agencies does not exist.

As a result, responses, which took months to get, varied.

For example:

  • The Hudson River Park Trust sent News 4 Investigates to the online Public Authority Reporting Information System to find compensation data.
  • Some agencies took over a month to decide that a different state agency should respond to our request for payroll data.
  • The FOIL officer for the Division of Budget in July said our  request was “overly broad and not reasonably described.”
  • The state Department of Transportation responded in late August to a request made in May for crash data by sending locked spreadsheets without the passwords.

News 4 Investigates is still waiting for documents requested from Empire State Development's nonprofit arm, Fort Schuyler Management Corporation, on Aug. 28.

“FSMC is reviewing your request and anticipates issuing a response to your request on or before November 8, 2018,” wrote Patricia Bucklin, vice president for administration for Fuller Road Management Corporation, another non-profit economic development arm of the state.

In June, Cuomo did say there would be a second phase to his transparency pledge that involves giving state agencies on a rolling basis a computer program to help “process requests more efficiently” and streamlining the FOI process.

But there is no sign any state agency has received this software based on News 4 Investigates' experiences. 


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