SamPratt.com

Quiet flows the Don

According to a longtime member of the Furgary Boat Club, Hudson Common Council President Don Moore has stonewalled that person’s efforts to discuss the fate of the 100-year-old local fishing encampment with him—going silent for over a week, after demanding to know where the member lived, and being told that member resides outside of Hudson.

If Moore, fashioning himself a man of principle, intends to adopt a consistent policy that he won’t discuss City of Hudson issues with non-residents, he may wind up with a long list of people with whom he’d have to stop talking. Don’s Don’t Talk List would also have to include, among others:

• Gary Schiro, head of the Hudson Opera House, who lives in Staatsburg;
• Peter Paden, head of the Columbia County Land Conservancy, who lives in Taghkanic;
• Elena Moseley, head of Operation Unite, Cyndy Hall, Columbia County Democratic Chair, Colin Stair, head of Stair Galleries, and Paul Mossman, head of DSS, who all live in Claverack;
• Todd Erling, Director of Hudson Valley AgriBusiness, who lives in Livingston;
• Ken Flood, head of development for the County, who lives in Castleton;
• Ann Cooper, head of Columbia County Tourism, who lives in Stockport;
• David Harrison, the Columbia County Sheriff, who lives in Austerlitz;
• Sheena Salvino, Director of HDC and HCDPA, and David Colby, President of the Chamber of Commerce, who both live in Athens;
• Cheryl Roberts, Hudson Corporation Counsel, who lives in Austerlitz;
• Giff Whitbeck, Assistant District Attorney, who lives in Greenport;
• Ken Faroni, lawyer for O&G Industries, who lives in Connecticut;
• Donald Stever, lawyer for Holcim, who lives in New York City;
• Chelsea Clinton, who is rumored to be buying a house in Old Chatham;
• Kirsten Gillibrand, U.S. Senator, who lives in Brunswick;
• Barack Obama, President of the United States, who lives in Washington, D.C.

Moore’s (alleged) new law of discourse would also preclude him from discussing concerns with most every lawyer, banker and accountant in town; several Hudson police officers; all of the non-Hudson County Supervisors who represent other towns; all the non-Hudson members of the County Democratic Committee; and about half of the shop, gallery and restaurant owners on Warren Street.

N O T E :  About 10 years ago, when the right to speak at Common Council meetings was finally granted to the public, the Council President at the time briefly attempted to prevent non-residents from speaking at meetings. When the unwise, impractical and probably unconstitutional nature of this idea was decried, the then-President relented—recognizing that nonresidents often have business, family, property and other personal ties to the City which may require discussion. Perhaps Moore wants to turn back the clock, and try that gambit again.

On the making of sausage (or: Dave & Don’s weenie roast)

Pretty much everyone has heard the saying (often misattributed to Bismarck but more likely said first by John Godfrey Saxe) about the making of sausage and laws... Namely: that to maintain one’s respect for either, one must avoid seeing how they get made.

That saying seems to apply several times over to the records this site obtained recently via Freedom of Information Law request from the City of Hudson, regarding the 2011-2012 citywide reval of property tax assessments. Here’s another illuminating exchange between Common Council President Don Moore and GAR Associates’ David Bartlett:

In early March of this year, Moore emailed Barnett to ask for a spreadsheet of Hudson property assessments in Excel format, since he was having some trouble with the PDF version. Barnett replies promptly with the Excel version attached, and adds this eyebrow-raising note:

Please do not disclose that this is in your possession. In past projects, spreadsheet numbers have been manipulated and used to paint an inaccurate picture. All of which I know you know.

Moore does not challenge or acknowledge Barnett’s curious request, merely thanking him for the file and asking for another.

Since the data had been made available as a PDF on the City’s website, one naturally wonders why Barnett would caution Moore to “not disclose” its existence as a spreadsheet.

The likely answer is technical, but important to explain... PDFs can be scanned or locked to make it difficult for recipients to export the document’s contents into other programs. With the raw data in hand, a recipient could more readily search, sort and analyze the material in much greater depth. One can compute averages, medians, modes, and changes, or segment results by property class, neighborhood, etc.

So from a citizen’s perspective, it appears that Barnett is concerned someone might use the underlying data behind the assessments to—heavens!—actually check GAR’s work. He’s telegraphing to Moore: “Don't let people know you have this data in this format, because then they can come up with their own conclusions, and maybe challenge ours.”

Tellingly, Barnett seems to assume that any independent analysis would be “manipulated” and “inaccurate,” rather than validating their work. From this, one might add a corollary to the Bismarck/Saxe law: that when selling sausage, it's best not to disclose the ingredients.

 

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POSTSCRIPT: For those interested in the details New York’s Freedom of Information Law, there are a couple of more wrinkles to consider here.

First off, it has been affirmed by State law and well-established in court—for example, in a recent case brought successfully by The New York Times against New York City—that if a government agency has a record in electronic format, the public is entitled to receive copies of that record in its original form.

For example, if a Mayor’s prepared a press release on his computer in Microsoft Word, sent it to his assistant via email, and attached a database of people two whom he wanted it sent, one would entitled to get those three documents in their “native” formats (Word, email, DBF). It would be improper for the agency to reply to the requests by printing them out and scanning them, as important data and capabilities may be lost in that process.

This might seem like picayune stuff, but for reporters and researchers it isn’t trivial at all; it goes to the heart of whether the press and public can hold their leaders accountable by delving into the making of their sausage.

A more pertinent example: Say a newspaper were doing an investigative report on whether a big city police department were profiling residents by race or neighborhood, and requested several years of arrest records in electronic format to prove or debunk such allegations.

If printed, such records could make up hundreds or thousands of pages, at 25 cents per page; whereas in their electronic format they might be sent as relatively small data files. More importantly, if these records are not provided in their original “native” format, the paper would either be stymied in its intent to do a statistical analysis, or else would have to spend a lot of time and money to have someone re-enter the data by hand into a searchable, sortable format.

In short, by not providing records in their original electronic formats when they exist as such, government can hide a lot of truths from the public, or at least make it much more difficult to arrive at those truths.

Predictably, Hudson’s City Attorney, Cheryl Roberts got snippy when these legal considerations were called to her attention, considerations I’d verified first with the indispensable Bob Freeman of the NYS Committee on Open Government. The City’s response to my FOIL came not in their original, native formats, but as scans of newly-made printouts, making them difficult to search, sort and analyze. (Unfortunately for them, I found software which pretty accurately scanned their materials back into searchable form, though no citizen or news outlet should have to go to that trouble.)

The City’s FOIL policy as it stands is to play dumb, drag out the time for responding, segment the process among its various departments, create unnecessary work for the City Clerk by having her scan printouts of electronic records—and then act annoyed when it’s pointed out that this has made things unnecessarily slow, wasteful and irritating for everyone involved.

A second wrinkle is that Barnett’s warning to Don Moore would not likely hold up in court, even if GAR had withheld the database file from the Council President. As a consultant to several government agencies (here, the Assessor’s Office, Mayor’s Office, and Common Council), GAR’s work product would likely be deemed a public record subject to FOIL.

Anyway, there’s still more to come from the GAR files.

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.