FOILed

Does the City of Hudson take New York State’s Freedom of Information Law seriously? The answer seems to be a definite yes for the City Clerk, but no for most other prominent officials, as we’ll see below. But first, a bit about FOIL and how to use it...

FOIL is a powerful tool which any citizen can use to obtain government records; and you don’t need to be a lawyer to use it. Any reasonably-described request to any agency of State or local government requires a timely response.

You can, for example, send an email to the general email of your municipality, putting it to the attention of the “Records Access Officer” with the subject “FOIL request,” followed by a brief description of what you’re seeking in the body of the message (say, the minutes of the Planning Board for the past year). Include your name, address, email, and whether you want the response electronically or on paper.

You don’t have to explain or justify why you might want these records, so long as your request isn’t overly-broad. Which is to say: don’t ask for all of your town’s records for the past century... though you can describe your request broadly enough to include things that might pertain to the topic, but which you might not know exist because they are buried in some official file.

Agencies have five days to either (a) cough up the records, (b) tell you there are no such records, (c) tell you it will take a little time to gather them, and give you a date no more than 20 days later to do so, or (d) deny the request specifying one of the few grounds allowed under the law. (An agency can be anything from a Zoning Board of Appeals to the Building Inspector’s office to the Town Board.) An agency can’t just ignore a request, even if it does not like it or doesn’t have the records.

If you do want to get to know more about the legalities of FOIL, the State maintains a handy web guide, and the Committee on Open Government’s Bob Freeman is generally easy to get on the phone to address citizen queries. But again, it really isn’t necessary to become an expert to use FOIL effectively.

Now: On May 9th, this site sent a message to the City of Hudson which requested in part:

a copy of any contract(s) with GAR Associates which was entered into by the City following the Council's March 2011 vote (Resolution 6) authorizing the Mayor to do so, and any official correspondence or amendments related to the terms or ongoing oversight of that contract to or from GAR. [...]

(This FOIL request applies to all sub-agencies of the City; please if necessary share it with those departments or officials who may retain records responsive to this request.)

The admirably-responsive City Clerk, Tracy Delaney, responded almost immediately, providing access to the GAR contract and other documents. She also indicated that the request also had been forwarded to the Assessor and Mayor.

Upon reading the lengthy GAR contract speedily provided by Delaney, I noticed that it required GAR to provide the Common Council with “monthly reports.” On the 11th, I followed up with Delaney to make sure that the City’s response to my FOIL would include those reports. (These are of special interest, since various City officials have professed to have been broadsided by GAR’s abrupt switch of all local bed and breakfasts from residential to commercial tax classification.) Delaney again promptly replied that she had provided what she had in her own files, and that:

The Council President does maintain his own files and he has received your FOIL request.

It has now been a  good deal more than five business days since Council President Don Moore, Assessor Garth Slocum and Mayor Bill Hallenbeck have been in possession of this Freedom of Information Law request, but none of the three has responded—in apparent violation of that unambiguous State law, which states:

Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied...

Emails were sent to Delaney and Moore bringing the situation to their attention; Delaney again responsively replied that she had re-forwarded the request to Slocum and Hallenbeck. Their lack of response thus far seems to bespeak either a lack of interest in following the law, or a reluctance to provide the records, or perhaps both.

More to come on this, once the City responds... or doesn’t.

UPDATE #1: Following a firm nudge at the City, I have now received a response from Garth Slocum indicating that he has begun work on responding to the request.

UPDATE #2: Don Moore also finally responded last week that he had “made a mistake” in assuming that the City Clerk’s response relieved him of the responsibility to respond himself. (This, despite the Clerk’s clear indication by email that her files were separate from his, and that the request had been brought to his attention for a separate search.)

UPDATE #3: City Attorney Cheryl Roberts called at week’s end to say that they Mayor’s office was also now working on the the request, and that she is assembling all of the materials, but that they would not be ready until the middle of next week. Roberts agreed that the City’s FOIL procedure has become unnecessarily fragmented, claiming that she “tried to address this in 2006” without success.

I’ve raised that problem with Moore and other local officials before. Under the balkanized “system” instituted during Scalera’s reign, citizens effectively became obliged to play a guessing game about which City department might have records responsive to their requests, and then badger each department head separately.

As an agency under the State’s definition, the City needs to have a Records Access Officer responsible for overseeing the search for documents, even if that officer delegates the task of finding them to individual department heads. Otherwise, the intent of FOIL to open up government to the public is foiled, as delays, denials, clarifications and appeals proliferate for what is meant to be a single, direct process. Hudson is classified as a “small city,” but it is really not that big, and thus really shouldn’t treat its agencies as far-flung fiefdoms in the way that Albany or NYC might need to.