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Where the Sun Don't Shine

As journalists celebrate Sunshine Week, some notes on the darker corners of government

I’m not sure when the high-water mark was regarding the public’s right to know about what’s being done in its name and with its tax dollars, but surely that time has passed.

A lot gets written this time every year as the press “celebrates” Sunshine Week. The focus is often on government’s failure to live up to the spirit, if not the letter of the Freedom of Information Law. But the problem goes well beyond efforts to stonewall the press and public under FOIL.

I’ve been a reporter for more than 30 years, and over that time I’ve experienced an exponential growth in government’s efforts to suppress, control, and spin information to suit political purposes.

This has been a bipartisan effort that extends from Washington to Albany to the town halls and school boards throughout the land. That’s not to say everyone is up to no good. But after three decades in the front lines, I can say from firsthand experience there is too much skullduggery going on.

The federal government is notorious for taking its time fulfilling FOI requests. As Jerry Zremski of the Buffalo News noted Sunday, the Navy took a decade to respond to an FOI request from the paper.

A decade.

There’s something far worse going on, however. Downright scary, in fact.

The feds have essentially acknowledged that they are using their surveillance powers to identify the confidential sources of reporters under select circumstances. It started under George W. Bush, if not sooner, and continues under Barack Obama, who as a candidate for president pledged greater protection for whistleblowers but has instead gone after them with a vengeance since taking office.

Most of my experience has been at the state and local level, and while nothing going on in New York rises to the level of what we’re seeing out of Washington, the basic MO of control is very much at play.

There have been some steps forward. Campaign contribution and expenditures of local, as well as state candidates, are online, although they could be presented in a more user-friendly format. Likewise, the state Senate has started posting more information, including its payroll.

But the Senate, much like the rest of state government, is on a permanent spin cycle.

I did a series of stories and blog posts on the spending of the Legislature in 2008 and calculated that its press apparatus involved 194 employees and $10.8 million in spending. Most senators had a full-time press secretary, not that most of them do all that much newsworthy, especially in the seven or eight months a year when they’re not in session.

All this “help” wasn’t of much use to me when I tried to obtain public records a few years back on the amount of mail Senator Antoine Thompson was sending to voters at taxpayer expense. It took me several FOI requests and well over six months—it could have been close to a year—before I obtained the information.

State government under the governor’s control—both departments and authorities—has its own set of issues. They all have press handlers—“public information officers” is a common title—and the good ones help reporters navigate what can be sprawling bureaucracies.

But I’ve learned over time that their first responsibility is to manage their department’s message, in part by keeping reporters from talking to rank-and-file staff. You know, the people who actually know something. But these staff people can’t necessarily be counted on to “stay on message.”

Instead, information requests and questions and answers all flow through the flacks, who usually have no firsthand knowledge of which they speak.

Then there is local government.

I continue to be amazed at how many officials charged with running public meetings and handling FOI requests simply don’t know the applicable laws. Elected boards will often go into closed-door executive session citing grounds that misinterpret the law. And the lawyers and bureaucrats charged with handling requests for public records often don’t know the FOI Law.

Then there is City Hall, where the Brown administration has taken obfuscation to a new low.

Here’s how it works.

Want to talk to the mayor? Good luck, unless you manage to catch him at a photo op.

Talk to staff? Surely, you jest.

Perhaps a department head? Probably not. They know speaking out of turn will incur the wrath of Deputy Mayor Steve Casey, if not Brown himself. Instead, media inquiries are usually funneled to the mayor’s communications director.

Ah, finally someone charged to deal with the press. But it can be tough sometimes to get even the communications director—previously Peter Cutler, currently Mike DeGeorge—to talk, so reporters are forced to ask for public records to fill in the gaps.

But asking for a public records means often getting told to file a FOI request, which can takes days, weeks, or months to produce results.

The routine goes something like this. The administration, through its legal department, will wait the full five business days permitted under law to recognize the FOI request in writing. It will then often say it needs at least 20 more working days to determine if the records are available. The 20 days comes and goes and they’ll often send another letter saying they need at least another 20 days. And so it goes.

On occasion, it takes a fair amount of time to locate and produce records. Then again, I’ve waited a month or two to simply obtain a resume of a department head.

But that’s nothing. A few years back the city made a reporter for Artvoice file a FOI request to obtain minutes of a Planning Board meeting—minutes usually posted online but in this case unavailable the links didn’t work—and then waited four months to produce them.

Said Artvoice editor Geoff Kelly: “The potential delays and headaches are so onerous that we typically avoid a FOIL process as best we can, and look for other means to acquire the documents we’re seeking. Which is crazy, right? The law that is supposed to guarantee transparency instead sends us running to back channels.”

The rest of City Hall doesn’t work this way. Let me give you a current example.

I filed a FOI request about a month ago seeking documents related to recycling. The City Clerk’s office, controlled by the Common Council, got back to me in less than two weeks to say they searched their files and didn’t have the records.

Meanwhile, I’m still waiting to hear back from the Corporation Counsel regarding records kept by the Public Works Department, both of which are under the control of the administration. Their initial five days has long passed, and most of their 20 have elapsed, as well. I’m expecting a letter any day now saying, “We need more time.”

While I can’t agree with the tactic, I can almost understand when it’s me or another investigative reporter with a history of uncovering wrongdoing. But the Brown administration routinely does this to other reporters.

For example, Aaron Besecker succeeded Brian Meyer as the News’s City Hall reporter last fall, and I can’t help but notice the number of times he’s reported that the Brown administration didn’t respond to questions or requests for information. Any kind of public relations pro would advise a client such as Byron Brown to not dump on a new reporter on the beat. But to Brown and Co., it’s shoot now and dodge questions later.

But again, City Hall is far from the only culprit.

“Worse than the city by far are the public authorities, the quasi-public agencies and committees, and the private nonprofits that exist to support some public (and publicly funded) endeavor, but which often claim to be exempt from state law,” Kelly said. “Examples are Great Lakes Health, which we sued successgully to get access to their documents, and the UB Foundations, who we sued and lost.”

I agree with Geoff that authorities and other shadow governments can be tough. But for downright hostility to reporters and distain for the public’s right to know, you can’t beat City Hall. Under the current administration, it functions as a 32-story bunker.

Jim Heaney is editor of Investigative Post, a nonprofit investigative reporting center focused on issues of importance to Buffalo and Western New York. Visit daily for investigations, analyses, blog posts, and the latest from Tom Toles.

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