In an advisory opinion issued today, the head of the state agency charged with overseeing open government laws rejected Mayor Bill de Blasio’s argument that some of his outside advisers were “agents of the city” and therefore exempt from the state’s Freedom of Information Law.
Last spring, de Blasio refused to turn over his emails and other communications with a handful of well-connected individuals, including a political consultant who represents the real estate industry, on the grounds that they were, as he put it, “agents of the city.”
On May 23 the Village Voice submitted a FOIL request seeking all communications between the mayor and five men he considered “agents.” We, along with a slew of other news outlets, received a partial response to our request, but a significant portion of the requested communications were withheld. Such trusted advisers should be afforded exemption from FOIL, the mayor’s office held.
The administration argued that some communications between de Blasio and Bill Hyers, John Del Cecato, Patrick Gaspard, Nicholas Baldick, and Jonathan Rosen were exempt from disclosure under a provision of FOIL that generally applies only to employees of the city. What made de Blasio’s claim extraordinary is that none of the “agents of the city” he designated are actually on the city payroll — or paid by the city at all. Yet de Blasio has maintained that they are so central to his administration that they should be considered in the same light.
“There’s a handful of people who have been advisers of mine for years, and who were so consistently sought, in terms of their knowledge and input that we thought were absolutely, legally in a different category,” de Blasio told WNYC in May.
The public interest in seeing these communications is undeniable. Four of the men have ties to the mayor’s now-defunct nonprofit Campaign for One New York, currently the subject of scrutiny connected to the mayor’s fundraising practices. Rosen’s communications firm represents real estate interests that have done business with the city, while Hyers and Baldick work for a political-consulting group.
In response to the mayor’s refusal, longtime civil rights attorney Norman Siegel, representing the Voice, filed a request for an advisory opinion on the city’s argument from the Committee on Open Government (COOG). We asked “whether a person who is not employed by or paid by the city can be considered an agent of the city such that their communications with the mayor would properly be exempt from disclosure under FOIL.”
While previous cases have generally exempted communications from consultants hired by a public agency, the COOG noted, the “agents of the city” identified by de Blasio are not paid.
“The records cannot be withheld based on the rationale offered,” the COOG wrote in its opinion signed by executive director Robert Freeman.
The COOG opinion cites a lawsuit against the Bloomberg administration, Hernandez v. Office of the Mayor of New York City, in which the courts rejected an argument similar to de Blasio’s. That case challenged Bloomberg’s withholding of details of his communications with Cathleen Black, who was then a nominee for chancellor of the New York City schools. A 2012 decision in the New York Court of Appeals determined that because Black was only a nominee at the time, and not an employee, her communications weren’t privileged. (That lawsuit involved then–Village Voice reporter Sergio Hernandez.)
The COOG’s opinions are not binding, but generally carry significant weight during litigation. The opinion ends with an unusually blunt declaration that the COOG would forward a copy of the opinion to the mayor’s counsel to “encourage a change in the stance taken by the Office of the Mayor.”
“We are pleased with today’s advisory opinion,” said Siegel. “It confirms our position that the records between Mayor de Blasio’s office and persons his administration has labeled ‘agents of the city’ should be publicly disclosed. In short, the public has a right to these communications. That is what FOIL is all about.”
We’ve reached out to the mayor’s office for comment, and will update this post when we hear back.