Saugerties meeting hears about the ins and outs of freedom of information

Robert Freeman, executive director of the state Committee on Open Government (photo by David Gordon)

When a citizen believes his or her local government is breaking the laws requiring open meetings and access to records, the man to turn to is Robert Freeman. Freeman, the executive director of the state Committee on Open Government, has been serving in the position since 1976.

Freeman boasts a data base of thousands of questions about the law stored in his memory. He also has extensive files of previous requests, opinions and laws regarding freedom of information.

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Introducing Freeman, who spoke Tuesday, May 9 at the Senior Center, Jo Galante Cicale said, “I was a new reporter at the time, and every reporter – one of the first things you learn from your editor, was ‘call Bob,’ and that’s all you had to know.”

In general, people have more freedom to examine public records than they think they do. As electronic storage of records increases, the cost of obtaining copies and the need to turn up in person at town halls have been reduced dramatically, Freeman said.

Many citizens are not aware that there is an office that offers expertise in the legal requirements for open meetings and accessible records, Freeman said. Freeman has worked with the Committee on Open Government since its inception in 1974. He is the preeminent expert on freedom of information and open government, Galante Cicale said.

“I say the Committee on Open Government is the smallest state committee that actually does anything,” Freeman said. The staff consists of just three people. “I have what I believe is the best job in state government. All we do, all day, is offer advice, opinions, guidance, training, to anybody who has a question about public access to government information in New York – primarily in relation to the Freedom of Information Law, which many of you know as FOIL, and the Open Meetings Law.”

A great deal of information about the investigations the committee has handled can be found on its website, which is most easily found by typing “coog” into a search engine. The full site at https://www.dos.ny.gov/coog/ has a record of past opinions, the text of the laws, frequently asked questions, and much more information, Freeman said. For some users, written advisory opinions are the most useful activity of the committee. “They are not binding. They are, we hope, educational, persuasive, but if you don’t like it, you can just throw it away and say, ‘Freeman just doesn’t know what he’s talking about.’ That is your choice, but for what it’s worth when courts have reviewed our opinions they have agreed between 80 and 90 percent of the time. The goal is to answer a question and therefore resolve a problem before it becomes a dispute.”

Freeman’s committee has written some 25,000 opinions over the years. They are indexed by key phrases. If you can’t find the record you want by the phrases, there’s a search box on the site.

If you call and leave a message, Freeman promised that either he or his assistant, Kristin O’Neill, will get back to you. The number is 518-474-2518.

Information should be generally available, except for things that would involve invasion of privacy or legitimately confidential materials. On some occasions, information about private companies vis-a-vis their competition may be withheld.

The federal Freedom of Information law applies only to federal agencies, Freeman said. “My belief is that the federal courts have done damage to the federal act.”

In many states people do not have anyone they can call to find out what is public and what is not. “There’s nobody to call,” Freeman explained. “Here, we get thousands of calls and our website receives hundreds of thousands of hits every year.”

Public entities subject to the law include “the state, towns, villages, school districts, public authorities, public benefit corporations.” Not-for-profit corporations are generally not covered, except for those created by government. The law now defines a not-for-profit corporation with a majority of its board appointed by a government entity as a government body.

Federal freedom of information legislation is unclear about the definition of what’s a “record.” New York law clearly defines the word. When the word was defined in New York in 1978, there were no computers, no cell phones, and copies were made by using carbon paper in the typewriter. The law defined a record as “any information in any physical form whatsoever. So whether it is the eight-and-a-half-inch sheet of paper, the content of a database, a videotape of an open meeting, all of the things that store information and are maintained by or for a government constitute agency records that fall within the purview of the law.”

One question from the audience concerned an organization called Reclaim New York, one of their activities was to FOIL communities to the extent of disruption. What could be done about it?

“You do your best to comply with the law,” Freeman responded. “Call me if there’s a problem.” Reclaim New York is headed by Rebecca Mercer, whom Freeman described as one of the primary financial supporters of Donald Trump. “What they are doing is legal – anybody can make a request under FOIL,” he said.

Reclaim is asking for records of expenditures made primarily by local governments. Sometimes a government agency has the ability to provide information in electronic form, and sometimes it does not. “I’ve had to remind Reclaim, as well as others, about the Rolling Stones principle of law, ‘You can’t always get what you want.’ If you do have information that’s maintained electronically, and it can be made available in the form that they want it, you can do that, and if they are willing to pay the appropriate fee, then yes, you must. But there are many units of government, particularly small units of government, that simply don’t have the technology that enables them to make the data available in the form or format in which they want it, and that’s where the Rolling Stones principle comes into play.”

Sheila Isenberg, a writer and former reporter, praised the FOIL law in general, but she noted it was used a few years ago to force a Woodstock librarian out of her job. “We had one guy FOILing the library daily,” she said. The librarian eventually quit as a result, she said.

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While an agency is required to respond to a FOIL request within five days, it is not required to produce the requested material that fast. The response may simply contain an approximate date when it will be produced, he said.

How records are organized can also make a difference, Freeman said, using the example of the telephone book. If a list of everyone named “Smith” in a municipality is requested, it can easily be filled, as the directory is organized by last names. On the other hand, if the request is for everyone named “John,” the task becomes almost impossible, Freeman said. “That’s when you tell the applicant, ‘We’re not required to go through the haystack in order to find the needles, even though we know the needles are there somewhere.”

A clerk can ask for payment up front: “We believe the fee will be X. Show us the money and we’ll start doing the work.”

Freeman praised the idealism and desire for truth he sees in many journalism students. Their drive and their commitment to ferreting out the truth are needed more today than ever before, he said.

For people wanting to know more, an online version of the agency’s “Your Right to Know” brochure is available at https://www.dos.ny.gov/coog/pdfs/right2know.pdf.