Or, how I learned that “no” can later mean “yes”

This past spring I became interested in the ongoing hospital consolidation process, mandated by the Berger Commission, whereby private Kaleida Health would be merged with Erie County Medical Center, a public benefit corporation. I arrived late to the story, having followed it in a pedestrian sort of way, like most of you.

I decided that I’d try to play a little catchup, so I dredged up all the articles I could find. I scoured Lexis Nexis. I read the Final Report of the Commission on Health Care Facilities in the 21st Century (a volume as easy to read as its title), and learned about the history of the Berger Commission under former Governor Pataki’s tenure. The story seemed so long and drawn out that I was having a hard time getting my bearings. Private hospitals were going bankrupt in some parts of the state, etc., something had to be done, and so on.

I decided that what I really needed to get familiar with everything I’d been missing were copies of the meeting minutes for Western New York Health System, Inc., the board that was named by New York State Department of Health Commissioner Richard F. Daines to accomplish the consolidation of Kaleida and ECMC. WNYHS was frequently referred to as “Newco” in the press—even though the group never filed any official paperwork for the name change. Talk about confusing. They have no Web site, no phone number, and no address.

On April 25, I sent an email FOIL requesting copies of all board meetings of the trustees appointed by Daines and the board of the Western New York Health System, Inc. (a.k.a. Newco), dating back to January 1, 2007; as well as a complete and detailed list of financial receipts and expenditures of the Western New York Health System, Inc. (a.k.a. Newco), dating back to January 1, 2007. I sent the email to Robert Gioia, chairman of the board of that entity, to the only email addresses I could find for him. One went to him as the president of the John R. Oishei Foundation, one went to him in his capacity as one of the principals of Strategic Investments & Holding, Inc., located a block away from the Artvoice office in the Cyclorama building.

I decided to copy David M. Zebro at Strategic Investments as well, just because I saw his name on their Web site and recognized it as being on the board of WNYHS. I also copied Judge James McLeod, because he too sits on the board and I had just been trying to contact him for comment on another story, regarding his role as chairman of a school board ethics panel investigating who leaked information from an alleged executive session to a Buffalo News reporter. Turns out he was presiding in that capacity in conflict with New York State standards and administrative policies pertaining to judicial conduct and when it was pointed out to him he resigned that post. Anyway, I reached out to him.

As an afterthought, I decided to try somebody at ECMC, since they have some representatives on the board. They have an actual email address especially for Freedom of Information Law requests: foil@ecmc.edu.

That’s when things got interesting.

Four days later, on April 29, I received an email reply from a downstate attorney in Great Neck, New York, named Robert Andrew Wild, Esq. Wild explained: “We regret that we cannot comply with your request as the Freedom of Information Law does not apply to Western New York (sic) which is a New York not-for-profit corporation and is neither a state, municipal nor public entity as defined by General Construction Law Section 66. Further, Western New York (sic) does not perform a governmental or proprietary function for New York State or for any municipality (see also General Construction Law Section 66).” Further, “We can also advise for the same reasons that Western New York (sic) is not subject to the Federal Freedom of Information Law.”

On May 2, I replied both to Gioia and Wild that Robert Freeman, Executive Director of the New York State Committee on Open Government had offered an opinion specific to WNYHS and the 501c3 referred to as “Newco,” in which he declared it a “public body” required to comply with the Open Meetings Law, despite its status as a not-for-profit corporation. On the same day, Wild wrote back that he was familiar with that opinion and respectfully disagreed.

For the next few weeks I wrote about other things, and felt downhearted that I’d never get to know much more about WNYHS, or Newco, or whatever. I’d just wait around like everybody else until they closed Millard Fillmore Gates, or ECMC, or Buffalo General, and then I’d read about it in the paper and trust that everything worked out for the best.

I’d forgotten I’d even sent my FOIL to ECMC until I received, on May 20, a copy of all the meeting minutes ECMC had available, through their attorneys Colucci & Gallaher, P.C..

I about fell out of my chair.

I’d forgotten that ECMC is designed to comply with FOIL requests, not dodge and contest them. At last, I had a little peek into what had been going on behind closed doors for many months, and it wasn’t always pretty. (Those Newco board minutes have been posted on the Artvoice Web site ever since, and I encourage you to download a copy for yourself.)

With that victory, I realized I should have sent my FOIL request to UB president John B. Simpson, since he was involved with WNYHS, and if the State University of New York at Buffalo is not a public body, what is? I sent him an email on May 30, again requesting meeting minutes, financial records, and, for good measure, a complete set of bylaws for the board of trustees appointed by commissioner Daines to be a unified governance structure for the consolidation of ECMCC and Kaleida Health Systems—and Western New York Health System, Inc. (a.k.a Newco).

On June 3, UB records access officer James L. Jarvis, Jr. sent a letter saying he would look into it, and would contact me in 20 business days. On July 3, he sent a letter saying they were “in the process of reviewing” my request and that it was anticipated that “those records that you have requested that are disclosable under FOIL and the Personal Privacy Protection Law” would be provided to me within 30 days. Exactly 30 days later, on July 30, I received a letter from Jarvis explaining: “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.” If I wanted to appeal, I could send a letter to Albany.

By this time, I had become a petitioner, along with three other citizens, in a legal proceeding to test the argument maintained by WNYHS that they were above both the Freedom of Information Law, and the Open Meetings Law. Local attorney Peter A. Reese represented myself, Ellen Reese, Maximillian G. Tresmond, and former Masten District councilman David A. Collins before State Supreme Court Judge Patrick H. NeMoyer.

On September 12, NeMoyer ruled convincingly that WNYHS was “without authority to deny the April 2008 demand of petitioner Quigley for copies of minutes of all meetings of respondent Board of Trustees and Respondent WNYHS’s board of directors since January 1, 2007. Such meeting minutes necessarily constitute ‘public records’ that must be made available to petitioner Quigley pursuant to FOIL.”

Not only that, but going forward, meetings must be advertised and open, not just to journalists, but to everyone. We all now have the opportunity to be informed.

Petitioner Ellen Reese, commenting on the verdict, had this to say: “We believe it’s tragic that our only daily newspaper which dominates print media coverage in Western New York has chosen to ignore the obvious and flagrant violation of the public officers law. This is particularly disconcerting in view of the fact that one of the major court of appeals cases relied on by Judge NeMoyer (Matter of Buffalo News v Buffalo Enter. Dev. Corp.) was won in 1994 by the same newspaper which now seems indifferent to the issue.”

Tresmond proclaims it “a victory for Western New Yorkers because it restores transparency to a government riddled with back room deals and corruption.”

Peter A. Reese, who argued the case so convincingly that NeMoyer took the unusual step of awarding him compensation for his attorney’s fees and costs, adds this about his alma mater: “I find it appalling that the State University of New York at Buffalo, our major public university, instead of serving as a center for enlightenment, has chosen to cast its lot on the side of secrecy and back room deals. This is a disservice to every citizen of Western New York.”

I too, as an alumnus of UB, was disappointed to read the replies from Jarvis. Even though he actually hung up on me when I called to check on the status of my FOIL request, I’ve probably done the same thing to the people from the university who call me early on Saturday mornings to request money from me. Again and again and again.

I happened to catch Robert Gioia at his Oishei Foundation office as we were going to press. He said, “Our next meeting isn’t scheduled until October 1, so there’s a little wiggle room here on whether the judge grants us a stay. I just don’t know how that works. I assure you we will obey whatever the court decides. Whenever the process is concluded. As you know, the process is not concluded until we accept the decision.”

So it appears that WNYHS isn’t happy with letting us in on their get-togethers, and intend to fight on, in the interest of darkness and secrecy. I asked Gioia straight ahead: “What’s wrong with letting the public in on the process?” He declined to comment. I told him our readers are likely to infer what his silence meant. He told me he realized that.

Nothing is more important to the future of our region as the quality of our health care. Not only does ECMC conduct itself with an air of full disclosure, but they also care for all residents of New York State, regardless of their ability to pay. And at least under the leadership of recently departed CEO Michael Young, the hospital was able to do all of that and turn a profit. The bottom line is that we all, as citizens, deserve the right to know what is being planned for our future, and the future of our children. We will all be patients in the end.

—buck quigley