Laws are often cleverly written to allow those who draft their provisions to get around them.
The legal language used in government statutes confuses many laypeople. But they frequently persuade themselves that the law appears legitimate and will serve its intended purpose.
However, loopholes abound. It’s in this confusion that constituents miss the minute details that provide some leeway on enforcement. In addition, vague wording in the documents allows for very generous interpretations, ones that often favor the people who are supposed to abide by particular laws.
The state’s Freedom of Information Law is a classic example. And if there’s anyone who knows how to use it to his advantage, it’s Gov. Andrew Cuomo.
Earlier this month, the Times Union in Albany reported that Cuomo’s office refused a FOIL request by the newspaper. Some creative reasoning gave the governor the cover he sought.
“Gov. Andrew M. Cuomo’s office is declining to release records detailing overtime payments to junior staff members, arguing those records have been ‘compiled for law enforcement purposes’ and if disclosed would ‘interfere’ with law enforcement investigations. The denial may provide insight into an investigation being conducted by Attorney General Letitia James’s office, which concerns Cuomo’s use of government staff to produce ‘American Crisis,’ a $5.1 million, for-profit book,” the Times Union reported July 19. “As the Times Union reported in April, at least two junior Cuomo staffers were assigned book-related tasks last year while also earning substantial overtime payments in 2020. Cuomo’s office says that no overtime was paid to staffers for work related to ‘American Crisis’ and that any overtime requested was ‘to help assist in the operation of state government.’ The office is declining to release the records that may confirm that assertion. The Times Union sought records under the Freedom of Information Law showing the days certain junior Executive Chamber staffers earned overtime last year and any records providing a reason as to why the extra work was necessary.
“Citing an exemption that is normally invoked by police agencies and prosecutors’ offices, the governor’s office contends the time and attendance record would interfere with a law enforcement investigation if disclosed — an apparent reference to ongoing investigations by the state attorney general’s office and the U.S. attorney’s office in Brooklyn,” according to the article. “The attorney general’s office is examining whether Cuomo’s use of government staff constituted a misuse of taxpayer resources. The governor’s office, in its denial, did not explain how the release of those records would interfere with any law enforcement investigation. Cuomo’s office, in its formal denial of the records request, contends it doesn’t matter when the documents were created, only that now they could [affect] a law enforcement investigation. It’s unclear how the release of the public records would interfere with any outside investigation.”
The Times Union reported that Cuomo’s office has used this same FOIL exemption to deny previous request for information. He’s using this provision to conceal documents that the public should see.
In a July 21 editorial, The Daily Gazette in Schenectady argued that the language in the state FOIL needs to be revised:
“There’s a provision in the state Freedom of Information Law that is used so much by government officials to hide illegal and inappropriate conduct that it has no business in a law with the words ‘freedom’ and ‘information’ in it. It’s time state lawmakers stop allowing officials to hide behind this exemption and remove it or significantly change it to make more such information available. The exemption relates to disclosure of records that ‘are compiled for law enforcement purposes and which, if disclosed, would interfere with law enforcement investigations or judicial proceedings; deprive a person of a right to a fair trial or impartial adjudication; identify a confidential source or disclose confidential information relating to a criminal investigation; or reveal criminal investigative techniques or procedures, except routine techniques and procedures.’ We’ve got no problem with the government withholding records related confidential sources or investigation techniques, and neither should anyone else. But the language of the rest of the exemption is so sufficiently vague and broad that virtually any investigation into any government official can fall under it. The exemption has been exploited for everything from withholding building inspection records to police disciplinary records. Often the records withheld were already in the public domain and removed. …
“The exemption needs to be clarified and narrowed so that the people can judge for themselves the impact of documents on an investigation and also to limit its use to the agency conducting the investigation. The state also needs to change the wording to clarify the difference between records that are collected for an investigation and those compiled independently. And it should require officials to state exactly how the release would undermine an investigation, and it should more precisely define the conditions under which the exemption would apply.”
We agree wholeheartedly. New Yorkers have a right to know how government officials are using their tax money and when authorities are potentially abusing their power.
The obstacles that Cuomo’s office is putting up look very suspicious, but it would require someone filing a lawsuit to even have a chance at determining the truth — this serves as a disincentive for people to seek out the facts. Self-government cannot function like this, and our laws must give us the tools we need to make informed decisions. Revising the state FOIL would be a good place to start.