In 2015, after Governor Andrew Cuomo vetoed a set of bills designed to strengthen New York’s Freedom of Information Law, Robert Freeman did something most state employees couldn’t — he called bullshit on the governor.
In place of the measures he was scuttling, Cuomo drafted up an executive order that contained precisely none of their provisions. This, Freeman bluntly told a reporter, was “not nearly as expansive as a law would have been.”
Baldly contradicting the head of the administration that employs them would, for most state employees, be ill-advised. But that’s sort of Freeman’s thing. For over forty years he’s been the executive director of New York’s Committee on Open Government. Andrew Cuomo isn’t the first governor he’s publicly (and strategically) taken issue with in the press. He’s the seventh.
In early 2015, Freeman rebuked Cuomo for withholding records relating to one of his pet projects, Start-Up NY. A few months after that, he told a reporter that Cuomo was one of the “more difficult” governors he’d ever dealt with. That’s saying something, too. Freeman’s been at this since the mid-Seventies — in fact, it was Andrew Cuomo’s father, Mario, who, as attorney general, established the hands-off approach to Freeman’s position that still holds sway.
Freeman’s unique role as New York’s in-house transparency agitator seems a little unlikely at first blush. With his khakis and neatly trimmed mustache, Freeman, 69, comes across more like a fire chief or a cop than an open-government idealist. But in many ways it’s Freeman who helps keep the radical spirit of FOIL — born of the post-Watergate, burn-it-all-down 1970s — alive in New York government.
Officially, the role of the COOG is to help state agencies comply with FOIL. Housed within the Department of State, the committee consists of Freeman and two other staff members who issue advisory opinions on proper interpretation of the law, as well as annual reports on how to make it function better.
In practical terms, after four decades in office, Freeman has become larger than the agency he runs. In part that’s because of his relationships — he may be the most accessible agency head in the state. Much of his day is taken up with phone calls during which he counsels advocates, journalists, and ordinary citizens on how to navigate FOIL’s sometimes byzantine particulars.
Over the years, his cheerful cantankerousness has made him famous in certain circles, particularly with the reporters who look to him as a surefire source of quotes that mix wit and heat. When Bill de Blasio withheld emails from various contacts he’d labeled “agents of the city” (most of whom were connected to the ongoing scrutiny of the mayor’s fundraising practices), Freeman broke out the Yiddish word for insanity, “mishegas.” When an agency obstructs without good reason, he might label the tactic the “Nancy Reagan response,” as in just say no. (He’s fond of music references as well.)
“The man is a gem, the best taxpayer expenditure since schools,” says Tom Robbins, a former Voice investigative reporter now with the CUNY Graduate School of Journalism. “His name and number were on the office wall at the Voice in the early Eighties, the only state official who always returned a call.”
Born in Boston and raised mostly on Long Island, Freeman had an idealistic streak when he left New York University with a law degree in 1973.
“I was in college in the late Sixties,” Freeman tells the Voice. “And it was the era of protest. Anti-war, civil rights. And I was on a lot of marches back in those days. It was also the era of idealism, in many ways.”
But, as he tells it, he more or less fell into his role at the COOG. The federal Freedom of Information Act was passed in 1966, and the states soon followed suit. New York passed its version in 1974, around the time Freeman was lured out of a private law firm and into state government. When the COOG — then known as the Committee on Public Access to Records — was being established, an aide to then-governor Malcolm Wilson asked if he wanted to serve as counsel for the new agency.
“He said, ‘You’ll be dealing with the new Freedom of Information Law,’ ” Freeman remembers. “I said, ‘I don’t know anything about it.’ He said, ‘That’s OK, nobody else does either.’ ”
Since then the agency has issued “at least” 25,000 advisory opinions, Freeman says, and he estimates he gives 75 to 80 presentations in a given year. That’s part of the reason he’s deliberately stuck with what he calls a “dumb phone,” so that he can disconnect when he needs to. He’s also a little skeptical about email. But he will gladly get on the phone. And, even nearing seventy, Freeman can still get worked up about government transparency. Occasionally, he sort of shouts. Not at you, though. It’s just passion. Probably.
Freeman readily admits to the limits of the office. The COOG can only advise; its opinions aren’t binding. The real decisions come in the courts. And while an advisory opinion can be a powerful tool with which to threaten an agency, the structure of the committee makes him, arguably, a toothless tiger.
Chris Dunn, associate legal director of the New York Civil Liberties Union, says Freeman “is out there doing God’s work.” But without God’s power. Courts are free to ignore Freeman’s opinions, and they sometimes do.
“In a perfect world, I’d like the power to make a determination that’s binding, of course,” Freeman says. Asked if that might ever happen, he all but rolls his eyes, answering before the question is even finished. “No, no. Do you think the governor or the mayor of New York City would want to give that power to anybody? Forget about me — to anybody? Come on.
“I think about the song by Aerosmith: Dream on. We’re an aberration to begin with.”
Freeman also knows that a certain degree of the agency’s independence derives from his longevity. If the directorship had changed hands seven or eight times over his tenure, it’s possible that independence would have eroded. Freeman says his relationships with the media and with officials at various levels of government have also helped insulate him.
“When people of diverse groups rely on you, that tends to provide a degree of protection,” he says. “If there were an effort to emasculate this office, in all honesty, all it would take is one phone call and there would be fifty editorials across the state.”
As willing as he is to call out agencies for obstruction, Freeman says that many of the calls he receives come from people within the government who want to do the right thing. (“The Spike Lee principle,” he adds.) While I’m in his office, he takes a call from an anguished-sounding city clerk upstate. For months, the clerk tells Freeman, he’s been dealing with an angry resident’s FOIL request, and the guy is impossible to satisfy. The reason for his call: Has he done all he can? It’s almost like he’s seeking absolution.
Given his role, Freeman is in a unique position to gauge how well FOIL is working in New York, and in some ways, he’ll tell you, getting government records has never been easier. The internet has made it feasible for agencies to post reams of information for the public to access at will. And there’s more awareness than ever about the law. FOIL is a verb now, he points out, FOILable an adjective. It’s entered the lexicon.
But the effect of the law varies widely across the state, Freeman says. If a small-town mayor flagrantly defies it, Freeman is more than happy to provide the public shaming that just might change the situation.
“But New York City is like another country,” he says. “There’s no accountability.” Downstate, Freeman thinks FOIL is losing ground. “Sometimes the law is crystal-clear, and sometimes government officials just don’t care. There are some officials who are just beyond embarrassment.”
He’s quick to add that news agencies can do more. Traditionally, reporters have waged their FOIL battles in private; it’s often part of reporting, but rarely the subject of it.
“I don’t think you embarrass the government nearly enough,” Freeman says of the press. He, for one, is happy to help us do better.