Thwarting the public’s right to know

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Government reluctance to release public records is at an all-time high – particularly in New York State and the City of Buffalo – a panel of experts said Wednesday at a luncheon sponsored by Investigative Post.

“It’s increasingly difficult to acquire records in a timely way,” said Robert Freeman, executive director of the New York State Committee on Open Government.

Freeman said that while the Cuomo administration has made progress on open data and providing online access to some records, the length of time it takes state agencies to fulfill Freedom of Information requests “warrants criticism.”

“Across all levels of government, the pushback against reporters requesting information is extraordinarily strong,” said Steve Brown, investigative reporter with WGRZ.

“In this state, it’s off the charts.”

First Amendment lawyer Joseph Finnerty, a partner at Hiscock & Barclay, said government has an “instinctive reaction not to release information.”

Finnerty, who has represented a number of media organizations including the Buffalo News, the Associated Press and Investigative Post, said that government entities tend to overuse the exemptions in the FOI law and add “debilitating time delays” in processing requests.

He cited  New York State and the City of Buffalo as “very difficult to deal with,” often only releasing information as the result of lawsuits, he said.

This reluctance to release information under the FOI law is part of a broader shift within government to focus on controlling their public image, the speakers agreed during the panel discussion, moderated by Investigative Post Editor Jim Heaney.

Freeman said that it used to be that reporters could walk around government offices and talk to staff. Now, if a state employee talks to the media without permission, they could be disciplined or even fired, he said.

Both the open meetings and Freedom of Information laws are based on “reasonableness and common sense,” Freeman said. The law presumes that everything should be open to the public, except where disclosure would be harmful – for example, violating someone’s privacy.

But in reality, that’s often not the case.

“Right now, the FOI law really has the effect of delaying the release of information and making it more difficult,” Finnerty said.

And records that would previously have been readily available are now only accessible through FOI requests, Brown said. Government’s default position is now to not release even basic information without a FOI request, he said. In practice, that introduces a delay of between five and 20 business days – the time limits for responses stipulated in state law.

“It can often be at least six weeks before you can even find out if you can get what you’re asking for,” Brown said.

“It’s almost as if state agencies here in New York are using FOIL to see if they can try and put you in the penalty box for a month and see if you’ll stop being interested in the story.”

And if an agency won’t turn over records, or delays endlessly?

“Embarrass the hell out of them,” Freeman said, by producing stories and editorials naming and shaming agencies that stonewalling requests for information.

Said Finnerty: “If you can make the pain of not producing something greater than the risk of the pain of doing so – that’s when you have leverage.”

There can be different reasons behind the struggle to access government records, ranging from what Brown called “informed obstruction” – when government attempts to avoid unfavorable coverage by knowingly withholding information – to “purposeful ignorance” of the law, Freeman said.

Nonetheless, he said, “in most instances, there’s no excuse for ignorance, there’s no excuse at this point.”

Said Brown: “It’s your government, you already paid for it – you’re just asking for the paperwork.”

The luncheon was part of “At Issue,” an event series hosted by Investigative Post. Sponsors include Bernhardi & Lukasik, the M&T Charitable Foundation; Talking Leaves Books; Schroeder, Braxton & Vogt; WGRZ; and Artvoice.

The series continues:

• March 25, 6 p.m.: Happy hour panel discussion on building a stadium for the Buffalo Bills.
• April 15, 7 p.m.: Investigative Post environmental reporter Dan Telvock discusses his coverage of the Outer Harbor and moderates a panel discussion.
• April 29, 12 noon: BTF President Phil Rumore and School Board member Larry Quinn discuss the future of Buffalo schools.

Tickets to all events can be ordered online here.