The following article is written by Nick Reynolds and was published by the Ithaca Times on February 3, 2017. Link to article- Ithaca Times Article, “Are Tompkins residents using their right to know?”
There is a popular document among journalistic circles that flows like poetry, a call to action that instills a sense of responsibility for the press and the citizenry it serves to hold those that govern them accountable. It reads: “A free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government.”
This document isn’t an excerpt from some great speech, not some Dan Rather-esque declaration on a Facebook feed or a page ripped from a top-shelf tome on an editor’s shelf. This is one of the opening paragraphs of the New York State Freedom of Information Law, a piece of legislation that is oftentimes the only means for the public to understand the machinations of its government.
FOIL, or FOIA as it’s known at the federal level, requires no license to utilize. FOIL is by design one of the checks on power available to the general public, the surest way of responsible questioning and staying informed about the activities your government undergoes.
To find out how often the residents of Tompkins County take advantage of this right, the Ithaca Times performed an independent survey of all public agencies in the county to learn A) what people are FOILing for and B) how often they’re FOILing. The conclusion we found was thus: it happens quite a bit in some places, not so much in others.
The question of what types of FOILs came through seemed to model issues of serious consequence for each municipality. In places like Danby, for instance, a good proportion had to do with the proposed South Hill Recreation Way, which garnered requests from several other municipalities along the route. In Enfield, which received 13 total FOIL requests last year, more than half were for any available information on the proposed Black Oak Wind Farm.
As expected for larger agencies, the requests were much more diverse. The Ithaca City School District’s 50 or so FOIL requests from last year involved employment records, student information, salary and benefit data, lead testing results and various school presentations. At the county level — where 197 requests were processed — requests ranged from the health department (22 total) to the sheriff’s office (35) and district attorney (11). Of these 68 requests, 28 were denied or rejected.
Krin Flaherty, an assistant attorney for the City of Ithaca, works in the office that handled the most FOIL requests – 822 – out of any entity in Tompkins County last year. She said though most requests do get filled, whether in full or in part, some documents can be denied on a handful of criteria as dictated through the FOIL law itself. This is known as the public officer’s law. Exemptions, Flaherty said, can include areas such as police reports containing extensive personal information, intra-agency communications between city staff and other municipalities, or anything that would impair pending contractual negotiations or criminal investigations, which are typically evaluated by the staff of the City Attorney.
“Once we release something through FOIL, it’s public for whatever that person chooses to do with it,” Flaherty said. “So we try to make sure when we put something out there, we make sure it won’t be an invasion of somebody’s personal privacy.”
How To FOIL
According to the New York State Committee on Open Government, “all records are subject to the FOIL,” a record defined by the law as “any information kept, held, filed, produced or reproduced by, with or for an agency in any physical form whatsoever.” To obtain a record, citizens must first make a request, typically in writing, to the agency they wish to request information from through FOIL.
While many smaller agencies process requests through handwritten appeals or even through requests made through email, the county and city use an automated system available on their individual websites, which helps streamline their ability to take large volumes of requests and stay in compliance with the FOIL.
Writing a records request isn’t complicated: citizens simply need to know a record exists and describe it as specifically as possible in order to get what they’re looking for. Flaherty says that for the fastest fulfillment of your request, giving as much information as possible — including searchable terms like names or dates — could prove to be helpful in searching for records, especially given that many documents are maintained in digital format. The more difficult FOILs to fulfill are the vague ones, she said. This includes requests for documents that may exist but, because they are requested in such a vague fashion, they are challenging to find. FOIL, Flaherty says, mandates public access only to documents and not to information. This means the city attorney or clerk won’t be on the hook to generate a document if it doesn’t already exist. For instance, in researching this story, the Ithaca Times requested any existing datasets for FOILs each municipality received this year: most municipalities, to protect the personal information of those requesting information, don’t keep a specific list. The municipalities denied the request initially because the record the Times requested did not exist, and had to be produced.
Each office, eventually, did fulfill our needs primarily because knowing how the FOIL structure works is clearly public information
“Oftentimes when it’s easy, we can usually just produce that [type of] information,” Flaherty said. “I understand the public doesn’t necessarily know how our files are structured, but hopefully we can communicate how we do organize our documents so they can help refine their request.”
Within five days of receiving a request, a public agency is by law required to respond to the request. After, the agencies get to work. While some documents can be produced almost instantly, Flaherty said in most cases city records can take approximately three weeks to produce. At the state and federal level as some journalists can attest, requests can sometimes take months to fulfill.
Occasionally, documents may cost money to produce if printed on multiple sheets of paper or on a compact disc. This cost can sometimes be waived if, in your request, you give a rationale for why the cost would be either a financial burden or unnecessary expense. If information is redacted or a request is denied, the party requesting records can appeal with their own rationale for why a piece of rescinded information is in the public interest. And, if you feel the public agency isn’t acting within reasonable compliance of the law, the Committee on Open Government gives advice, and can be reached at their Albany office at 518-474-2518.
The legislative declaration of §89 of the New York State Freedom of Information Law states, “it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible. 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.”
Since 2008, Tompkins County officials and officials the Towns of Ithaca, Dryden, Danby, and Caroline have withheld information about the proposed trail from landowners. In Summer 2016, Ed Marx of the Tompkins County Planning Department refused communication or a meeting with landowners. The towns of Ithaca, Dryden, Danby, and Caroline indicated they didn’t have any information to provide, and that landowners should contact the county for more information.
Subsequently, Tompkins County refused to provide some of the information sought in the FOIL requests, information which was referenced publicly at the “Open House” on November 29, 2016, and in an Ithaca Times Article, “A Longer South Hill Rec Way?” on December 7, 2016.
Petitioners Scott and Crystal Van Gaasbeck are bringing the following proceeding against Tompkins County pursuant to Article 78 of the New York Civil Practice Law and Rules (“CPLR”) requesting that the Court direct Tompkins County to provide the Petitioners with records responsive to their November 7, 2016 and December 8, 2016 FOIL requests for records pertaining to the County’s communications with NYSEG concerning the recreational trail.
According to New York State FOIL Law, “a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government.” (From Public Officers Law, Article 6, §84 NYS Committee on Open Government)
To view New York State Freedom of Information Law, please visit NYS Committee on Open Government. The following images are from the NYS Committee on Open Government Website: