By KYLE PRATT
Managing Editor
In the digital age, it takes just a few clicks to find out the value of a neighbor’s home, the cleanliness of a local restaurant, or even a parole date of a prisoner, but when it comes to public information held by local and state governments, access is not always so easy.
The public has a right to most documents and information curated by government agencies within New York State per the state’s Freedom of Information Law (FOIL). However, the law does allow for a few exceptions, such as information that violates one’s personal privacy, or reveals aspects of a criminal investigation, among others.
For journalists, access to public records is often integral to the telling of a story. The importance of public information is one Rex Smith, editor of the Albany Times Union, knows all too well.
Editor since 2002, Smith has seen how the digital age impacts a newsroom. There are fewer reporters, meaning there is less oversight on local government.
“It’s fundamentally important for us to be able to get access,” Smith said, “It’s fundamental to democracy.”
“Some local governments just don’t get coverage anymore,” he said, “If you don’t have journalists looking over the shoulder of public officials, information the public needs just doesn’t get to them.”
Additionally, Smith said, the digital revolution has allowed local governments to find new ways to deny access to public information, making it easier for information to be deleted. He cited Governor Andrew Cuomo’s use of a Blackberry, which Smith said does not save messages.
Another exception to Foil, and one that is routinely used, according to Smith, is New York State Civil Rights Law 50-a.
The law protects the confidentiality of police, fire-fighter, and corrections officer records that are used to evaluate performance. This means that records of wrong-doing within police and fire departments are difficult to access. It allows local governments to claim “basically anything” as a personnel issue, barring access to journalists, Smith said.
Put simply, “bad behavior is protected under 50-a,” he said.
Smith has seen the effects of 50-a in Albany, a city he said is “a great example of the 50-a problem.” A wall his newspaper has fought to take down multiple times, even in the state’s highest court.
In 2010, the Hearst Corp., which owns the Times Union, won a lawsuit against the city and the Albany Police Officers Union, challenging they blocking of information related to the purchasing of machine guns by city police officers. The process took four years, according to a July 2010 story.
The city claimed the names of the police officers were personnel records, said Brendan Lyons, a long-time reporter for the newspaper.
Similarly, in 2009 the Times Union used the New York State Freedom of Information Law to attempt to access information regarding bull’s-eye decals used by police officers and others to avoid parking tickets.
The newspaper’s lawyers began the litigation process. After months of expensive preparation, Lyons said, the city released the records just before the case went to court. In a story written in October 2011, Lyons, who is now editor of the Capitol Bureau and the Investigations team, detailed a New York state appeals court’s decision in the case, writing “The city of Albany disregarded the public’s right to open government and must pay legal fees to the Times Union over its decision to withhold records related to dismissed parking tickets,” and cited the court’s decision to grant the fees. Lyons also reported on the machine gun suit.
“They got beat up,” he said of the city in regard to the lawsuits.
Lyons said the ease of access to public information depends on the agency. Many local municipalities have improved. The government of Halfmoon, for example sometimes sends documents to him the same day he requests them, he said. The same is not true for the agencies, especially those at the state level. They take much longer to fulfill Freedom of Information requests, mostly because of lack of resources, he said. He also echoed Smith’s sentiments about 50-a.
The law is “not only abused,” he said, ” It’s become broadened beyond reach.”
The 50-a law was originally intended to prevent attorneys from confronting police officers in court about their personnel records in order to discredit them, Lyons said. He also said that when attorneys try to access personnel records now, they are first reviewed by a judge, who decides what information is relevant to the case at hand.
“Even if 50-a was struck down,” he added, “judges could still control their own courtroom.”
Over Lyons’ career, the process for requesting public information has become easier, he said. In the digital age, FOIL requests can be sent via email, or through a website, making the initial process, the sending and receiving of the request, more simple. Not everything has improved, though, according to Lyons.
“What hasn’t changed, and may have even gotten worse, are response times,” he said.
Agencies continue to delay their responses, sometimes for more than a year, and often don’t give a reason, he added.
“That’s a big hole in the FOIL law,” he said, “There is no real weapon to say to these government agencies ‘You can’t just unnecessarily delay me.'”
Bob Freeman, the executive director of the New York State Committee on Open Government understands that officials can sometimes make accessing public information difficult but said the digital age has made information more available.
A digital public record is still a public record, he said, meaning it’s still available for the public to access. Anyone can acquire information now, that in the past would have been difficult to access, he said.
Freeman acknowledged that agencies can sometimes act as barriers between the public and information.
“They delay, they delay, and they delay,” he said.
As for government openness in Albany, Freeman said the city is “sometimes good, sometimes not so good.”
A “great deal” of information is easily made available by the city, he said. Albany is much better at government openness now than it was 30 or 40 years ago, he added.
“Nevertheless,” he said, “human nature being what it is, in some cases there is unnecessary and unwarranted resistance.”
Freeman said he is “never satisfied” with the state of access to public information. “There are always improvements to be made.”
Gerald Campbell, Albany’s city clerk and records access officer, did not respond to a request for comment.
