In de Blasio’s New York, Transparency Laws Mean Nothing

In 2013, a self-styled crusader set out to raise the alarm over a lack of transparency in New York government. “The City is inviting waste and corruption by blocking information that belongs to the public,” the crusader said, angered that officials were ignoring the mandates of New York’s Freedom of Information Law, and doing so with few consequences and no meaningful oversight. “We have to start holding government accountable when it refuses to turn over public records to citizens and taxpayers.”

The crusader in question was Bill de Blasio, who, almost exactly four years ago, as Public Advocate, issued a scathing report condemning government agencies across the city for their records on FOIL. During his time in City Hall, de Blasio’s words have come back to haunt him, as his administration has proved decidedly less transparent than he once promised. Publications from the New York Post to the New York Times have criticized his reflexive secrecy — and sometimes taken him to court over it.

Now a wide-ranging survey of city agencies by the Village Voice has found that the problems de Blasio himself identified in his 2013 report remain unaddressed as the mayor heads toward the close of his term. A review of thousands of pages of FOIL records shows the city’s system for handling public information requests remains haphazard, under-resourced, and often excruciatingly slow. And the mayor’s own office is the slowest of all.

FOIL, when it operates well, provides a critical window into the functioning of government. In just the past few months, records obtained under the law have exposed how Donald Trump profited from the same kinds of energy efficiency subsidies he now attacks, and how lax enforcement allows bad nurses to thrive in New York State. Just last month the de Blasio administration lost a FOIL lawsuit brought by NY1 that saw the mayor’s office attempting to shield the release of emails from so-called agents of the city — a dispute that continues and has helped reveal the close relationships between the mayor’s office and developers. Beyond journalism, FOIL allows the public to pry open government’s black box and see how officials act in their name.

In April 2016, the Voice contacted two dozen city agencies seeking a copy of their FOIL logs — spreadsheets used to track the receipt and disposition of information requested under state law. The goal was to find out how transparent agencies were about their FOIL procedures and how fast, on average, they responded to requests from the public. To do so, we evaluated them in two stages: first, how quickly (or — in some cases — if) they responded to the request for the logs; and second, on the data those logs contained.

Major problems surfaced the moment the project began. In submitting our requests, we found a hodgepodge of contact points. Some agencies, like the FDNY and NYPD, only accepted FOIL requests via snail mail, a violation of state law. Some asked for requests via email, while others accepted requests only through web forms. Some publicly listed the names and addresses of FOIL officers; many others didn’t. (A new online portal, fully operational in the past year, means records can be requested electronically for all agencies, according to the mayor’s office. More on that system later.)

While you might expect the mayor’s office to be attentive to what de Blasio has called a critical government function, it was actually among the slowest, producing its log only after 84 days. The Administration for Children’s Services was slowest of all, at 183.

Most prompt were the Department of Emergency Management and the Taxi and Limousine Commission, both of which produced their FOIL logs in under 5 days. But on average, it took 64.8 days to fulfill what should have been a simple request. And that average doesn’t include the agencies that ignored us entirely: Six of them, including the FDNY and Department of Correction, never responded at all, as of the end of our survey period, on March 17. (Some have since produced the requested records after being notified about this article.)

Norman Siegel, a prominent civil rights attorney who has spent a career tangling over public records (and who has represented the Voice in FOIL matters), expressed little surprise at our results. Some city agencies are so notorious for stonewalling FOIL requests that he and others have simply stopped trying.

“My experience is that the FDNY and the NYPD, for example, they thumb their nose at FOIL law,” Siegel says. “And that’s unacceptable.”

When we analyzed the logs themselves, we discovered that the mayor’s slow response to our request was not an anomaly. The logs showed that de Blasio’s office has the second slowest response time of any agency in the city. The mayor’s office took an average of 66 days to respond to FOIL requests from the public, more than double the 31-day combined average for other agencies.

Natalie Grybauskas, a City Hall spokesperson, defended their record.

“We take our FOIL obligations seriously and endeavor to respond to all requesters promptly,” she told the Voice via email. She pointed out that the mayor’s office is often on the receiving end of complex requests — email chains that can stretch back years, for example — something that might be less common, she argued, at other agencies. “Many requests [received by City Hall] are expansive and open-ended,” she wrote. “Under the FOIL statute, we are required to review each individual document to prevent release of personal information or something that may harm the public welfare.”

As Grybauskas points out, it can be difficult to compare response times for various agencies. But according to Bob Freeman, director of the state Committee on Open Government and one of FOIL’s original drafters, that shouldn’t matter all that much.

“I understand that they have other things to do and this may not be at the top of their list of priorities,” Freeman says. But too often, he adds, agencies say short staffing keeps them from following up with what is, after all, state law. “Compliance with FOIL is a governmental obligation,” Freeman notes.

Many requests to City Hall — the mayor’s daily schedule, for instance — were straightforward, and were often closed in a day or two. But others dragged interminably. Thirty-nine percent of requests took more than 60 days, and 17 percent took more than 120 days. A few took nearly a year.

Analysis of the FOIL logs from other agencies yields results all over the map. Average response times ranged from 3.6 days to 69 days, with just over half of the agencies in the survey coming in under the 30-day mark. That disparity was one of the primary problems identified in de Blasio’s 2013 report.

Because of inconsistent recordkeeping, our survey has significant limitations. Most agencies don’t record whether a request was denied or fulfilled. Redactions to some of the records also varied wildly. Some agencies redacted the names of requesters, some redacted only a few names here and there, and some didn’t redact anything.

Even that suggests a problem, Freeman says. “Our general view is that the request itself is public, including the identity of the applicant,” he says, except in extraordinary circumstances. If someone requests documents related to personal medical information, for example, that could be properly redacted. But many agencies went far beyond that.

The NYPD’s logs were among the least complete of the agencies that responded — unsurprising, given that the department is routinely sued for noncompliance with FOIL and is notorious for knee-jerk denials of even clearly public records. (The NYPD did not respond to repeated requests for comment.)

Its logs demonstrated that opacity, often containing only vague, cursory descriptions of the records sought; “various documents” was frequently the only notation. The department also redacted the names of requesters entirely, making it impossible to say whether they were journalists, attorneys, victims of crimes, or even other law enforcement agencies. Beyond that, the logs contained obvious errors that throw their accuracy into doubt. One entry, for example, was listed as being processed and closed on September 5, nearly a month before it was received. In the end, the department had a comparatively good response time of 34 days, though that’s tempered significantly by all the recordkeeping muddle.

Last year, as part of an effort to streamline FOIL’s functioning, the de Blasio administration launched OpenRecords, a platform that allows requests to be submitted to any city agency from a single online portal. But OpenRecords still isn’t fully operational; all agencies currently accept requests through the site, but they may not respond through its automated system, according to Grybauskas.

When the Voice used OpenRecords to submit some of the requests for this project, we found the results weren’t appreciably faster. In fact, of the four agencies that took the longest to respond to our initial request — as long as 183 days, or nearly five months — all were contacted through the portal.

A common complaint of city agencies is that they lack the personnel to handle what seems to be an ever increasing volume of FOIL requests.

“I’ve had some FOILs where they say they need a year to get back to us,” Siegel said, speaking generally of city government. “When we pursue it, they say, ‘We don’t have the staff.’ My answer is: Get the staff. This is the law.”

We asked agencies how many people they had working on responses, but higher staffing levels didn’t always mean better performance. The Department of Correction, for example, said it had one attorney devoting about half their time to FOIL, along with two assistants, and six other lawyers devoting about 10 percent of their time. That’s more than a lot of agencies, and yet they ignored our FOIL back in April; a spokesperson later told the Voice that the main FOIL officer was on vacation when it arrived, and it somehow got lost in the shuffle. (The department has since complied.) According to Grybauskas, the mayor’s office has seven staffers handling FOIL, either full- or part-time, and one more full-time staffer on the way, and that didn’t seem to help them, either.

“My instinct is that people in government generally don’t take FOIL seriously, and they get away with not taking it seriously,” Siegel says. In that sense, nothing has changed since Public Advocate Bill de Blasio found most city agencies “in breach of law” in 2013.

There was a notable exception, however, in our survey. Even with a comparatively high volume of requests — more than two thousand over our survey period — the Taxi and Limousine Commission managed an average response time of under four days, far and away the best of the group.

Asked for her secret, Sonal Sahel, the TLC’s assistant general counsel, makes it sound pretty simple. Her office tries to focus on its “legal obligations pursuant to the FOIL statute,” she says.

“We don’t like to think of it as an option, I guess.”

Correction: An earlier version of this story included a chart erroneously stating that the Department of Transportation did not respond to our request for their FOIL log. In fact it did, in August of 2016.