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FOILed Yet Again

UB fails to divulge public records

For those of you who believe that public information should be accessible to a free press, it may be interesting to note that a May 30 FOIL request to UB president John Simpson has been denied to Artvoice.

Records being sought included copies of all board meetings of the trustees appointed by New York State Department of Health Commissioner Richard F. Daines and the board of the Western New York Health System, Inc. (a.k.a. Newco), dating back to January 1, 2007; complete and detailed list of financial receipts and expenditures of the board of trustees dating back to January 1, 2007; and a complete set of bylaws for the board of trustees.

To date, we’ve received three written replies from UB Records Access Officer James L. Jarvis, Jr.. The first arrived dated June 3, indicating receipt of the request with the expectation that further contact would be made within 20 business days.

The second letter arrived dated July 1. The full text reads: “We are in the process of reviewing your request and developing our response. It is anticipated that those records that you have requested that are disclosable under FOIL and the Personal Privacy Protection Law will be provided to you within 30 days from the date of this letter. If you wish to make further inquiry regarding this particular FOIL request, please reference File Number 08-125.”

Jarvis was curt when I made my “further inquiry” on July 25 by phone. I said I was following up, and pointed out that it was nearing two months since I’d made my initial request, and that his written response was not in keeping with the laws of New York State, which I quoted to him: “…if the receipt of request was acknowledged in writing and included an approximate date when the request would be granted in whole or in part within 20 business days of such acknowledgment, but circumstances prevent disclosure within that time, providing a statement in writing within twenty business days—”

Jarvis cut me off mid-sentence. “And I think we did that,” he said.

“What is the circumstance that prevents disclosure?” I asked.

“It’s in the letter. And you’ll receive more correspondence from us next week.” He hung up.

Evidently, the “circumstance” was that they had yet to craft the reply that would blow off the original request for public information.

In a letter dated July 30, 60 days after my initial e-mail, I received this response from Jarvis:

“The documents requested in your e-mail to John Simpson dated May 30, 2008 are not ‘records’ within the meaning of section 86(4) of the New York Public Officers Law. Therefore, they are not subject to disclosure pursuant to the Freedom of Information Law (‘FOIL’).”

He then invited me to appeal to SUNY’soffice in Albany if I disagreed.

Those of you not yet lost in all this legalese, Section 86(4) of the New York Public Officers Law reads as follows:

“Record” means any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.

ECMC has been very cooperative in sharing the “Newco” board minutes. (These have been posted on our AV Daily Web site for months.) ECMC has also been completely open in sharing other information with Artvoice. But then, ECMC, as a public benefit corporation, is simply following the law. When somebody asks to see the books, they open them.

Not so the State University of New York at Buffalo.

Robert Freeman, executive director of the Committee on Open Government in Albany, feels that the problem may be one of semantics. He recommends I ask for financial records, rather than for a “list” of financial receipts. As for the bylaws, he feels that if they exist, the request is completely valid. The same goes for the meeting minutes. “There are some agencies are more, let’s say, prone to disclosure than others,” Freeman observes.

So what’s the difference between a public benefit corporation like ECMC and SUNY? Freeman says that “in terms of the application of the Freedom of Information Law and the Open Meetings Law, there’s none.”

The new agreement that was hashed out behind closed doors in UB’s Farber Hall on a Sunday afternoon as part of the confidential settlement of a lawsuit between ECMC, Kaleida Health, and Newco repeatedly looks forward to the day when ECMC will no longer be a public benefit corporation.

One thing likely to disappear if ECMC’s status changes will be a little thing called public transparency.

buck quigley

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