In late November, Artvoice associate editor Peter Koch wanted to review the minutes of several meetings of the City of Buffalo’s Preservation Board. So Koch visited the Preservation Board’s Web site, where the minutes are generally available online. But the links to the minutes were broken.

Koch called the Preservation Board and was told he’d have to file a Freedom of Information Law request for the minutes—even though the board’s meetings are open to the public, even though the minutes are clearly public documents and are usually posted on the Web site for anyone to read.

Koch asked why the delay tactic? Michele Brozek, Senior Planner for Historic Preservation, told Koch that the city’s law department required a formal FOIL process before any city documents could be released. This is a new policy ushered in by the Brown administration, one that reinforces its reputation for authoritarian and secretive practices.

Lots of media people have run into this particular wall of silence. Certainly all of us at Artvoice have. In October, for example, I learned that the Common Council was considering a request from a company called Mercantile Adjustment Bureau, LLC. Mercantile has a contract with the city to collect outstanding debts—unpaid fines, fees, taxes, etc. Mercantile was asking the Council to write off as “uncollectable” $7.1 million in bad debts.

I was interested to learn about that bad debt and Mercantile’s contract—how much the company was paid, if there were performance requirements and how much they had succeeded in collecting. I sent an email to the director of the city’s Treasury Department, Mike Seaman, asking for the contract and any other relevant information he could supply, knowing full well what would happen next:

Seaman replied that he had forwarded my request to the Corporation Counsel’s office, and that I could file a FOIL request there.

Like Koch, I was frustrated: I could not think of any document more clearly defined as “public” than a contract between the city and a vendor. That’s precisely the sort of information the state’s open government laws are supposed to make available.

I noted this in my October 2 FOIL request to Assistant Corporation Counsel Cavette Chambers and Mayor Byron Brown’s communications director, Peter Cutler, asking that they provide the requested information immediately. (After all, the matter was to be deliberated that very day in Council chambers. What if there was something to write about the deal, pro or con?) What can be especially vexing about the FOIL process is the delay in receiving information that one knows is sitting in a single file somewhere, easily accessible. By state law, the recipient of a FOIL request has five business days to acknowledge receipt of the request. This is a holdover from the days when most requests were filed by mail; nonetheless, in the era of email, Buffalo’s Corporation Counsel never responds at once to a FOIL request and most often takes the full five days allowed by law to acknowledge receipt. (In the case of my Mercantile FOIL request, Chambers waited until October 5 to reply to my email.)

The recipient of a request may then take up to 20 business days to provide the requested materials or present a case for refusing to do so. But 20 business days is wishful thinking. On the Mercantile FOIL request, I waited until November 20—34 business days—before Chambers provided the information I had requested. Peter Koch is still waiting for the city to provide copies of the demolition permits for 454 Rhode Island Street, which he requested under FOIL on December 26: 35 days and counting as of press time.

I have a neighbor, Paul Curtin, an attorney who works for Legal Aid, who filed a FOIL request with the city for documents related to the decision to cut down the damaged tree in front of his house subsequent to the October 2006 snowstorm. Curtin still awaits a reply, more than a year later. Once a month he sends the city a note to remind them that he’s still waiting.

After I filed the FOIL request for the Mercantile information, I sent a note to Cutler, asking him to clarify what sorts of documents required a FOIL process, under his policy, as opposed to those for which a simple request was sufficient. Was it true, as it seemed, that all City of Buffalo documents were thus restricted?

He replied, “That’s always been our policy on requests for any government materials.”

I then asked Cutler why and when that policy had been instituted. FOIL requests, after all, are intended to be the last resort under the law for citizens seeking information from secretive governments, not the first step. Further, that had not been the policy under Mayor Tony Masiello, for whom Cutler was also communications director.

Cutler never replied, but Chambers did. Here’s what she said, in all its legal glory:

In response to your request below, please be advised that access to the records of the municipality is governed by, but not limited to, New York State Public Officers Law Article 6, entitled the Freedom of Information Law.

Pursuant to Public Officers Law Section 86(4), a “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”. Thus requests for the records of the municipality would fall within the purview of the Public Officers Law requiring the submittal of a FOIL request.

It is the policy of the City to adhere to the procedures as set forth in the Freedom of Information Law regarding the access and release of its records to the public.

Please let me know if we can be of any further assistance.

Much of this reply is a direct quotation of state law; one could see the telltale font changes indicating a cut-and-paste job. But that one line—“requests for the records of the municipality would fall within the purview of the Public Officers Law requiring the submittal of a FOIL request”—and especially that one word, “requiring,” stood out, and had been written by Chambers herself.

Was Chambers saying that she believed that state law required the city to demand a formal FOIL request for any municipal document? I wrote back and asked, just to be sure. Chambers still has not replied, lo these three and a half months later. I took that as a yes. I believe it’s called tacit agreement.

I called Bob Freeman, chair of New York State’s Committee on Open Government, which oversees these sorts of issues. I asked him if New York State law required that the city demand a FOIL request in every case, as Chambers suggested that it did.

He said, “No, that’s not accurate. If it were, god knows there’d be hundreds of government officials who were violating the law every single day. It is absolutely routine practice to disclose documents informally without the submission of a written request.”

Freeman allowed, however, that New York State law did not prohibit the Brown administration from requiring a formal FOIL request for any public record.

“They are allowed to do that, but I think it’s silly,” he said. “If a record is clearly public and it can easily be found, there’s no reason for delaying disclosure or putting up any kind of a stumbling block.”

It’s not like this everywhere. In other cities, governmental truculence is not explicit policy, as it is Buffalo. Rather, cooperation and obstinance are doled out on a case by case basis, according to colleagues in Pittsburgh, Rochester and Memphis, among others. Maybe an editor has a bad relationship with a department head, who denies the paper access to information—and so the paper is forced to take the last resort under law short of legal action, a FOIL request. Or maybe you walk into someone’s office, ask for a document and are given it—no fuss at all. None of the editors and government officials I spoke with in other cities had ever worked in a city that had a communications policy as restrictive as Buffalo’s.

When a government adopts the sort of policy the Brown administration has, Freeman speculated, they do so because they believe in controlling the flow of information, which is contrary to the spirit of New York State law and is a burden on the city’s bureaucracy.

“One of the trends we see for obvious reasons is the posting of a variety of documents on govenrment agencies’ Web sites,” Freeman said. “They’re there for the taking. And that makes a world of sense. You don’t have to submit a request in writing and the government doesn’t have to deal with the request. You diminish the bureaucratic effort.”

A quick look at the list of cities oft-referenced for good governance yields an example: In Portland, Oregon, all documents related to government contracts are posted online in a searchable database. Delaware District Councilmember Mike LoCurto wrote a resolution last fall asking that the mayor’s office and the city’s new information technology czar, Robert Leach, consider doing the same. The resolution was tabled. LoCurto said that some departments are either reluctant or organizationally unable to participate—the contracting process in Public Works, for example, is a mess.

If the Mercantile information had led to a story, it would have been too late: More than a month had passed when Chambers granted me access, and the Council already had agreed to write off the $7.1 million in bad debt. Fortunately, I had already decided that I was not going to write a story about it, having received the information I was looking for from Paul Wolf, then chief of staff for the Common Council. I sent an email to Wolf the same day I emailed my FOIL request to Chambers and Cutler. Wolf emailed me the relevant records the next day.

That’s the pathetic part about the Brown administration’s policy to inhibit access to public documents: It doesn’t even work. So why not chuck it.

PS: For the record…

Amounts recovered by Mercantile as of October 1, 2007:

1. Adjudication—$124,621.38

2. Accounts Receivable Invoices—$29,408.93

3. Parking Violations—$3,746,764.51

Commissions Collected by Mercantile for the 2006-2007 Fiscal Year:

1. Adjudication—$4720.00

2. Accounts Receivable—$6,688.76

3. Parking Violations—$96,550.88

If you’d like information about the $7.1 million in debt that the city wrote off as uncollectable, email me (editorial@artvoice.com). I’ll send it to you the same day—no FOIL, no charge.