Thursday, April 16, 2009

Freedom of information, but at what cost?

A funny thing happened in Riverhead Town Hall during "Sunshine Week" last month. Our town government tried to pull the curtains shut. Funny? Not really. Ironic? Yes. Especially when Supervisor Phil Cardinale touts the value of open government and signs e-mails with a quote from Justice Louis Brandeis: "Sunshine is the best disinfectant."

Let me explain.

In researching a story on Gov. David Paterson's plans to cut spending on the state's Empire Zone program, reporter Tim Gannon submitted a Freedom of Information Law request for annual reports filed by businesses receiving Riverhead/Suffolk County Empire Zone credits. The plan announced by the governor would have pumped up the required job creation and investment minimums for these businesses, and we wanted to see where our local Empire Zone beneficiaries stood on these criteria. So Tim filed the FOIL request asking to review the records.

Tim was later told that since the records he requested had the businesses' tax ID number on them, which is "confidential," he couldn't simply look at the records in the town's file. They would have to be copied and "redacted" to remove the tax ID numbers.

Accordingly, the 25-cents-per-page copying fee provided by the state's FOIL law would be charged. Since the reports we wanted to review totaled 522 pages, we'd have to pay copying charges of $130.50. In addition, he was told, we would have to pay for three hours of one employee's wages, plus benefits, for the time it would take to copy the records. That would be an additional $178.49. Grand total to inspect reports required by law to ensure accountability to the taxpaying public: $309.

The person in our town's "open government" conveying this news to Tim was none other than the town's "FOIL appeals officer," deputy town attorney Dan McCormick.

The law is plain: "the fees for copies of records which shall not exceed twenty-five cents per photocopy not in excess of nine inches by fourteen inches, or the actual cost of reproducing any other record" which can include "the hourly salary attributed to the lowest paid agency employee who has the necessary skill required to prepare a copy of the requested record."

Incidentally, the cost of reproducing those "other records" is limited to "salary" and does not include benefits. Not incidentally, if the hourly wage (even with benefits) of "the lowest paid ... employee" at Town Hall "who has the necessary skill required" to run pages through a copier and cross out a tax ID number is 60 bucks an hour ($178.49 divided by three), it's easy to understand why the cost of government is out of control. But that's another column.

Think about it. In order to look at records the very purpose of which is accountability to taxpayers, the government demanded $309 -- misinterpreting a law written to ensure public access to records.

The public shouldn't have to pay one red cent to look at those records and see if Empire Zone businesses are doing what they're supposed to be doing with our tax dollars. Forcing the public to pay more than $130 in copying fees (never mind the illegally demanded $178.49 for staff time to do the copying) is contrary to everything the disclosure laws are supposed to accomplish. What's the point of requiring public disclosure if the government can effectively prevent the public from the information being disclosed by charging exorbitant fees to access the information?

Bob Freeman, the executive director of the state's committee on open government -- a post he's held since its inception more than 30 years ago -- said Riverhead is all wet. The law doesn't require the town to "redact" tax ID numbers for corporations. The public has the right to inspect the reports and shouldn't be forced to pay for copies of them. And if copies are requested by the public, the town has no right to charge staff salary costs to make the copies.

But the town's FOIL appeals officer doesn't get it. He even argued with Mr. Freeman and insisted to us that it's Freeman who doesn't know what he's talking about. McCormick agreed to waive the staff salary charge "this time" but said he "reserved the right" to impose this charge in the future. He said he would research the matter further.

So editor Michael White took this up with Phil Cardinale, figuring he's got a loose cannon in the town attorney's office and that, believing in open government as much as he says he does, the supervisor would want to straighten him out. Mike asked for assurance that McCormick would be set straight and wouldn't pull this with members of the public seeking access to public documents. Instead of an assurance, the supervisor sent Mike a lawyerly response saying that McCormick "acknowledged" the legal charge was 25 cents per page.

"It has been my intent since I became supervisor to keep town government open and to err on the side of greater openness," Mr. Cardinale wrote in an e-mail.

Now the supervisor needs to make sure his FOIL appeals officer walks the walk. Judging from another citizen's recent experience with Mr. McCormick on a FOIL issue (see Guest Spot, below), I'd say either McCormick still doesn't get the "sunshine is the best disinfectant" stuff -- or Cardinale is saying one thing and doing something else.

If you've experienced difficulty accessing public records in Town Hall, or if you've been told you had to pay copying and salary charges just to see records, I'd like to know.

Send me an e-mail:


Anonymous said...

I happened to receive a FOIL packet from DEC yesterday: 25 cents/page, no fuss, quick turn-around...& that was AFTER they offered the option of viewing the file @ their office, no charge. It's disappointing Riverhead Town can't meet this standard.

As for the labor "surcharge," anyone who frequents a copy shop knows that ample staff time is already built into the 25 cents page rate...

Anonymous said...

Too many departments in Town Hall do not seem to know what an open government policy means.
The Building Dept. requires a Foil application to review building plans and refuses to allow copies made if a foil request does not explicitly request copies.
The Planning Dept as well as the ZBA request a Foil to review their Board minutes and too conveniently often claim the lack of minutes due to "technical glitches". This is an attempt on their part to limit information and taxpayers' ability to properly file legal claims against their Dept. decisions.
Filed Building Dept. plans, ZBA and Planning Dept. Board meeting minutes are public records and should not require a Foil, but sadly enough the Town's Attorney's office seems to back these actions and does not protect the rights of Riverhead taxpayers.
One gets to wonder what happened to Cardinale's claims of open government policy?