Stifling The Public’s Right To Know
Posted on Wednesday, 8 of April , 2009 at 9:57 pm
COMMENTARY
By June Maxam
Oh, the hypocrisy in state government.
Just how stupid and gullible do the people in New York State government think the people are, you know—those peons that support them with their tax dollars? These people on the state payroll, some of whom include the 8,900 that Gov. David Paterson wants to lay off, should be furloughed as a penalty for not doing the jobs that they are paid to do instead of circumventing the process.
Those people in government pretend to be so committed to transparency in government and pretend to support to the “people’s right to know”. The Assembly and Senate put forth a good façade last month during “Sunshine Week”, supposedly passing a flurry of bills that would ensure compliance with Freedom of Information Laws.
Earlier this week, Attorney General Andrew Cuomo said he was unveiling Sunlight 2.0, a new version of his government accountability and transparency web site that “enhances the public’s ability to access and review state and local government information”.
He says Project Sunlight was created in 2007 to take the business of state government out from behind closed doors and into the open for public review. Among other things, the Web site offers information to the public on how their tax dollars are spent, the work of lobbyists, how political campaigns are financed, and who is getting state contracts.
Sounds great, doesn’t it? Why, the public might almost buy into it, like buying snake oil from the corner hawker…….that is until they submit a Freedom of Information Law request and get stonewalled by virtually every arm of state government.
Just think, if a news organization meets stone walls and inordinate delays, how could the average citizen ever expect to get anywhere in trying to gain information that should be available to them?
The North Country Gazette submitted a FOIL request this week to the state Insurance Department, seeking information about the investigation of Global Property Owners Association, the company who was supposedly insuring Shoreline Cruises when their tour boat, the Ethan Allen, capsized and sank in Lake George in October 2005, killing 20 of the 47 passengers aboard.
Victims and families of the victims were then told by the attorney for Shoreline that the company couldn’t help pay for funeral and hospitalization expenses because its insurance company refused to pay.
James Quirk, Shoreline’s owner, says he believed the company was covered by a $2 million insurance policy with Global Property Owners Association located in Miami.But while Quirk said he had marine liability insurance, Charles H. Wegman, a agent for Global, said he didn’t and that the policy that Quirk paid nearly $15,000 in premiums for only covered the company’s boats while they were on dry land from May to October. Global says Quirk has only a general liability policy because Quirk refused to buy maritime insurance but Quirk disagrees and has paperwork which appears to support his contention.
Global Property Owners Association was not registered to sell insurance in Florida and Wegman is not a licensed insurance agent in Florida or New York.
Both New York and Florida opened an investigation into the company in 2006.
When The North Country Gazette attempted to learn the outcome of the investigation for inclusion in NCG’s upcoming book about the Ethan Allen tragedy, no information was forthcoming. It was asked that the request be expedited due to a time factor but the Insurance Department didn’t care.
The state agency, which is under the direction of Supt. Eric Dinallo, said the request had been referred to the “Consumer Services Bureau” and a response would be forthcoming within 20 business days—in other words, a month.
Can you imagine being a news agency, trying to prepare a news article and the state telling you that you have to wait for a month before they’ll provide a response? Trust us, after the month rolls by, there will be yet another excuse that they can find “nothing responsive” to your request or some such excuse.
When the Insurance Department’s response and delay was protested, NCG received a phone call from “Andy Mais” of the public affairs department who said that they imposed such delays “because we can”. There’s nothing in the law that says that an agency can’t be cooperative and provide the information requested in a more timely matter.
Mais pulls down an annual salary of $96,790 of our tax dollars and then there’s Paul Orkwis, principal insurance examiner with the Consumer Services Bureau who sent a mailed response, also citing a delay of 20 business days. It’s unknown why the fraud or investigative division of the insurance department doesn’t handle their own public records requests. Orkwis get paid $105,966 a year to make it next to impossible to timely receive public information from the insurance department.
And then there was Joanna Sutton who also sent us one of their form letters with the 20 business day nonsense. She rakes in $61,157 to play dodgeball. For all the time and money the insurance department expended trying to sidestep and delay the request, it could have been answered and over with.
Remember, according to the legislative intent of FOIL, “government is the public’s business and the public, individually and collectively and represented by a free press, should have access to the records of government”. FOIL is intended to give them that access.
Not if Mais and the state Insurance Department can help it.
But it’s not just the Insurance Department that has this attitude when it comes to FOIL.
On Feb. 26, in conjunction with an article being prepared about false positives, drug testing procedures and administrative hearings in the state prison system, The North Country Gazette sent a FOIL request to the state Department of Correctional Services.
The public information requested was simply and fairly generic including the “Credentials/training/law degree/length of service with DOCS as hearing officer of Ernest J. Maddox; copy of all complaints/legal actions filed against Ernest J. Maddox; copy of procedures including urinalysis procedures and directives concerning Tier 3 disciplinary hearings for misbehavior reports related to positive drug tests; identification of the method used for urinalysis testing, whether done in-house or outside lab and if outside, name of lab contracted with and employment/disciplinary history of Nurse Shear, RN; CO L.S. Barton and CO P. Smith-Gentile, all employees at Bedford Hills Correctional Facility”
On March 5, Chad Powell, “administrative assistant”, sent the standard delay letter, stating “we are attempting to determine what, if any, records are available concerning your request”.
Huh? You don’t have the copy of procedures readily available or the rest? Powell, who gets $50,426 a year to play these games, “anticipated” a reply by April 2.
Well, April 2 came and went and in the meantime, the investigative report we were preparing had to be completed without the required information after waiting two weeks which in our view, is excessive and unwarranted.
http://www.northcountrygazette.org/2009/03/11/inmate_abuse/
http://www.northcountrygazette.org/2009/03/11/false_positives/
http://www.northcountrygazette.org/2009/03/11/ny_inmates/
http://www.northcountrygazette.org/2009/03/11/inmates_victimized/
But along came April 2, and DOCS still couldn’t comply with the law. On April 6, Powell penned another letter saying that they were sorry for the delay but they were “still attempting to determine what, if any records are releaseable under the New York State Freedom of Information Law. We expect to be responding to your request shortly”.
Notice that Powell said “shortly”. Shouldn’t one be able to expect that a state agency, and in particular the Department of Correctional Services, comply with the law? Well, not only does it appear that DOCS is violating the constitutional rights of inmates with their drug testing procedures and administrative hearings, but they aren’t in compliance with Public Officers Law either as it relates to FOIL. Of course, you can always appeal and wait another 20 business days and if they still don’t choose to be responsive, then you spend big bucks and take them to court.
DOCS handles FOIL requests in the same non-responsive manner as the New York State Police, infamous for their refusal to comply with FOIL, depending on who’s asking for the information.
State law says that when an agency receives a request, §89(3) of the Freedom of Information Law requires that it has five business days to grant or deny access in whole or in part, or if more time is needed, to acknowledge the receipt of the request in writing. The acknowledgement must include an approximate date that indicates when an agency will grant or deny the request.
The date must be reasonable under the circumstances of the request, and in most instances, it cannot exceed 10 additional business days. If more than 20 additional business days is needed, the agency must provide an explanation and a date certain within which it will grant or deny the request in whole or in part. That date, too, must be reasonable in consideration of the facts (i.e., the volume or complexity of the request, the need to search for records, or the obligation to review records to determine rights of access).
Please note that DOCS didn’t do that—there is no explanation of why they need more than a month and a half to decide what their drug testing procedures are and if their administrative hearing officer, Ernest Maddox, has any legal training considering he stated on the tape of one administrative hearing that he doesn’t care what the Constitution says, especially the Fourth Amendment.
The Attorney General’s office is pretending that there is transparency in state government but yet state agencies like the Insurance Department, DOCS and the State Police are engaging in what only can be termed a game, a covert and secret dodging of providing public information in a timely manner, especially to news organizations, apparently hoping the requestor will go away when the process becomes too cumbersome, timely and costly.
In 2005, the Legislature made amendments to FOIL, “clearly intended to prohibit agencies from unnecessarily delaying disclosure. They are not intended to permit agencies to wait until the fifth business day following the receipt of a request and then 20 additional business days to determine rights of access, unless it is reasonable to do so based upon “the circumstances of the request.”
But that is exactly what these state agencies are doing.
Robert Freeman, executive director of the state’s Committee on Open Government, says “From my perspective, every law must be implemented in a manner that gives reasonable effect to its intent, and I point out that in its statement of legislative intent, §84 of the Freedom of Information Law states that “it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible.” Therefore, when records are clearly available to the public under the Freedom of Information Law, or if they are readily retrievable, there may be no basis for a delay in disclosure”.
As the Court of Appeals, the state’s highest court, has asserted:
“…the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase ‘public accountability wherever and whenever feasible’ therefore merely punctuates with explicitness what in any event is implicit” [Westchester News v. Kimball, 50 NY 2d 575, 579 (1980)].
The state’s Freedom of Information Law needs more teeth. Provisions are needed to stiffly penalize people like Andy Mais, Paul Orkwis and Chad Powell for playing games with the public’s right to know and especially PIO Laurie Wagner of the New York State Police who gets $128,499 a year of your money to intentionally make requestors wait 20 business days for her to then send a letter denying their request with some concocted reason—-because she can and if you don’t like it, take the state to court. That’s their attitude.
The State Legislature and our illustrious Governor need to make government accountability and responsiveness a priority all year long rather than superficially addressing it once a year during Sunshine Week. 4-8-09
Category: Adirondacks, Constitution, Consumers, Courts, Education, Government, Insurance, Media, New York State, Opinion, Police, Politics
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