Press Club of Long Island
An unprecedented audit by the Press Club of Long Island on the responsiveness of 196 municipalities and agencies to New York State Freedom of Information Law requirements revealed almost two-thirds failed to respond to requests for public records before the deadlines set by the law while almost half did not provide a list of documents they’re required to maintain.
And almost one-third of the villages did not provide a required written FOIL policy, although these policies are already in their municipal codes.
The overall average grade that Long Island local governments and agencies received for FOIL compliance is a C. That was calculated by averaging the grades of all 195 municipalities and agencies.
Nassau County agencies scored an average of D+. Suffolk agencies got a C+. The 13 towns and two cities averaged a B grade. And the average grade for the 97 villages was C.
The key findings :
FOIL established the four-decade-old process that the public, media and others use to obtain government documents. Released today for national Sunshine Week, the audit of local government compliance was conducted over 16 months by Timothy Bolger, freedom of information chair for PCLI, the local chapter of the Society of Professional Journalists. It is the biggest project in the history of PCLI, which was founded in 1974.
“If the Long Island governments and agencies we tested were high school students with a cumulative grade of a C, they would not be getting into the college of their choice,” said Bolger, managing editor of the Long Island Press, which supported the project by giving him the time to conduct the audit. “Many local officials are frequently quoted touting their commitment to transparency, but what we found is that actions don’t always match the buzzwords. We are encouraged that some officials had already begun improving their responsiveness to records requests before we contacted them about their grades and others took their grades as a call to action to do better.”
SPJ, the largest national journalism organization, advises reporters not to tell the subjects of an audit they are being audited so as to not taint the results. This recommendation was followed for the PCLI audit. Bolger identified himself as a member of the press and his requests were mostly made via email except in the cases of agencies for which no email address could be found. In those cases, he mailed requests.
PCLI spent $892.72 requesting documents from 84 Nassau and Suffolk county agencies, 13 towns, two cities and 96 villages beginning in October 2015. The biggest bill came from the Town of Islip, which charged $221 because minutes of its town board meetings were only available in the form of transcripts. Only 29 agencies—15 percent of those audited—billed us. Most complied with our request to email us electronic copies of the documents or didn’t charge for paper copies.
PCLI stopped short of taking nonresponsive agencies to court to ask a judge to compel them to release public documents, which is the next step under FOIL when an appeal of a records request denial is denied. Under the law, a judge can award attorneys’ fees in such cases to the plaintiffs, should the case be decided in their favor. Judges sometimes order non-compliant agency staffers to take FOIL refresher courses led by the state Committee on Open Government, which also regularly publishes advisory opinions on FOIL issues brought to its attention.
At the conclusion of the audit process, Bolger requested comments from all of the local governments and agencies that were queried. Comments from those who responded are included in this report.
After reviewing PCLI’s findings, Robert Freeman, executive director of the Committee on Open Government, a unit of the state Department of State that oversees FOIL, commented: “I’m not sure that, in some government agencies, officials are as receptive to the public and the news media as they should be. I think the public has the right to expect that government will do the right thing. Unfortunately, that does not happen as frequently or as routinely as it should.”
The report card mostly graded the local governments and agencies on the following requirements specified in FOIL: whether they responded to records requests within deadlines; if they provided documents they are required to maintain; if they denied requests in writing; if they identified their FOIL denial appeals officer; if we had to appeal a denial; and if they emailed the documents when requested.
They were also graded on two other criteria not specified in FOIL: how many times we had to follow up, and their helpfulness, such as turning over documents well ahead of deadlines, or unhelpfulness, such as requiring us to go to their offices to pick up files in person.
Using a system that considered D- as passing and the highest grade possible as A+, we graded municipalities’ responsiveness on a 10-point scale while county agencies were graded on a 9-point scale, with half points possible. The reason for the different scales was that one of the documents governments are required to maintain and provide upon request are minutes of legislative meetings. Because the Nassau and Suffolk legislatures each have archives of their minutes and recordings of their meetings online, we didn’t make those requests of them. But we did request the agendas and minutes of the five most recent board meetings for the towns, villages and cities. County agencies were not asked to provide minutes because most don’t hold public meetings. Only the Village of Lindenhurst failed to provide its minutes.
Six governments or agencies failed to provide a payroll list detailing the names, titles and salaries of current employees—one of the documents that all governments and agencies are required to maintain and provide upon request under FOIL. Another document we requested from all governments and agencies that they’re required to maintain was copies of FOIL-mandated policies detailing how they respond to records requests.
We also requested copies of subject matter listings, a lesser-known document that agencies are required to maintain. The document is essentially a list of the types of records that agencies keep on file. Ninety-one failed to provide one or the legally accepted alternative: stating that the government or agency follows the state’s Records Retention and Disposition Schedule, which the Committee on Open Government recommends municipalities formally adopt.
All governments and agencies were asked to provide copies of the log of their records requests and their log of subpoenas—documents they aren’t required by law to maintain. If those requests were not approved—whether because the files don’t exist or another reason—no points were deducted in the report card. But if they provided these non-required documents, they got a point in the helpfulness category.
The lowest grade given was zero, shared by the Suffolk County Office of Minority Affairs and the Village of Island Park. The minority affairs office did not respond to our requests and no payroll list was provided for it by the county. Island Park stood out as the only village on Long Island that did not respond to any of our attempts–eight in this case–to request its records until we asked for a comment on its failing grade.
The Village of Roslyn Harbor, which also received a failing grade, was the most hostile government encountered in the audit process. “We might not have time to entertain every whim that comes across our desk,” said Valerie Onorato, the village clerk-treasurer, after requiring Bolger to go to village hall to fulfill the request, provide identification that she photocopied and write down the reason for the request for the village’s payroll. Onorato, who subsequently left the job, repeatedly said: “Nothing good will come of this.”
Municipalities and agencies that scored an A+ were Nassau Community College and in Suffolk County government, the Clerk of the Legislature, County Clerk, Fire and Rescue Services, and the departments of Public Works, Social Services and Information Technology. Also earning A+ grades were the towns of Huntington, Riverhead, Southampton and Southold and the villages of Lattingtown and Lynbrook.
The quickest responses came from the villages of Sagaponack and Amityville, which provided responses on the same day we filed requests. The agency that took the longest to complete its response was the Suffolk County Fire Department of Health Services—382 days.
PCLI President Chris R. Vaccaro said “the Press Club’s unprecedented audit of Long Island municipalities and agencies is another example of how our organization continues to fight for openness in government. Freedom of information laws exist for a reason, and the results of the audit are pretty eye-opening. It’s our hope that the audit will help improve transparency by local governments and agencies that received low grades. We also commend the governments and agencies that scored high marks.”
“The Freedom of Information Law is a central component of public integrity and disclosure,” Gov. Andrew Cuomo said during his 2016 State of the State address while chiding the scandal-scarred State Legislature to stop exempting itself from FOIL.
“New Yorkers expect and deserve local government to be a place where access to public information is not impeded by unnecessary bureaucratic barriers,” said Susan Lerner, executive director of good-government advocacy group Common Cause New York. “Now more than ever, we must work to strengthen our democracy by keeping government transparent, accountable, and responsive to all individuals, especially the press. Common Cause New York applauds the good work of the Press Club of Long Island in revealing the inconsistencies and challenges in accessing public records across Long Island.”