We Asked Public Advocate Candidates: Is NYC Following the Freedom of Information Law?


John Penny

Voters who go to the polls next Tuesday for the special election for public advocate could be looking for a strong counterpoint to Mayor de Blasio or a crusader against corruption; a lawyer for the people or a civics-educator-in-chief; an ombudsperson or a policymaker-without-portfolio. The post can be any or all of those things, and the 16 people running for it have articulated desires to take on different combinations of those roles.

That degree of individualization is possible because the City Charter is pretty broad in describing the duties and obligations of the public advocate’s job, which is vacant now—or rather, filled on an interim basis by Council Speaker Corey Johnson—after Leticia James left to become state attorney general on New Year’s Day.

That Charter does get specific on at least one point, however: The public advocate is to investigate “the effectiveness of the public information and service complaint programs of city agencies” and the “responsiveness of city agencies to individual and group requests for data or information regarding the agencies’ structure, activities and operations.”

That could prove an important and timely task, because the state’s Freedom of Information Law (or FOIL) and the city’s compliance with it have become issues of interest.

Bill de Blasio came into office promising a healthier FOIL system, and did take some steps to improve the release of public information. But his administration’s interpretation of how the law applies to police disciplinary records has been controversial, as was his attempt to block the release of emails between City Hall and consultants whom the mayor dubbed “agents of the city.” Recently, City Hall emails that should have been released under an earlier FOIL request only emerged later during a criminal trial, raising questions about how scrupulous the administration has been about saving and producing documents that belong to the governed. Delays due to a lack of resources remain a practical concern.

Given the recent headlines about FOIL, City Limits asked the candidates for public advocate what they thought about the system and whether they would seek to change it.

Here are the responses we’ve received:

1. How do you assess the city’s compliance with FOIL? What (if anything) works? What (if anything) doesn’t?

Dawn Smalls: In general, most city officials and agencies take way too long to respond to FOIL requests, and at times try to evade compliance with FOIL altogether. From the NYPD trying to hide behind the to Glomar response to Bill de Blasio’s 3-year-long battle with NY1 to release communication he had with outside consultants, it takes way to long for information to reach the public once an information request has been filed. I think the Open FOIL online system that New York has in place could be effective, but there needs to be oversight of city agencies to make sure the system is being used properly.

David Eisenbach: Mayor de Blasio has failed to bring transparency to NYC government. He has refused to fulfill FOIA and FOIL requests for a reason – He wants to shield his pay-to-play corruption schemes and big real estate giveaways from the public. Every successful FOIL/FOIA request that reveals emails to the public has given us a glimpse into how corrupt and secretive he has been in his conduct as mayor.

Michael Blake: Thanks to Local Law 11, New York City has a mandate to make public data available on a single web portal, among others. NYC is publishing over 2,000 data sets. But we still have a significant transparency and accountability problem when NYCHA residents are lied to about lead paint in their apartments and New York City Police Officers disciplinary histories are not available to the public they serve. We have a serious problem when deals like Amazon are negotiated in the shadows, along with our ability to track whether it actually produces the city and community benefits it claims it will produce.

Rafael Espinal: FOIL is an essential part of transparent government but unfortunately I would rate the city’s compliance as dismal. When Mayor de Blasio was Public Advocate he criticized Mayor Bloomberg’s approach to FOIL, but he hasn’t done much better himself. The OpenRecords portal is a start, but response time is still an issue.

Jared Rich: The City’s compliance with FOIL requests, although thorough, takes entirely too long. I have an attorney friend who put in a request to simply obtain records relating to work done on a particular sidewalk. He put in the request on September 27th, 2018, and received an email stating he would receive a response on June 25th, 2019. The fact that it takes almost a full year to search computer records and respond to such a simple demand is ludicrous. Either the City is attempting to delay matters in responding, or the FOIL unit is simply underfunded and understaffed. This once again goes into my entire theory that our government is full of waste. I wonder how many different departments a request has to go through before it is fulfilled. I wonder how, mere days after receiving the request, they knew that it would take 9 months to respond to a request. I wonder what we can do better. I wonder what we MUST do better. The computerization of the process is a positive step, but once you press submit, bureaucratic red tape still delays the access to information that the public is entitled to.

Ydanis Rodriguez: There’s always room for improvement. NYC has one of the most user-friendly and transparent FOILs in the nation but city agencies in many instances have failed to comply with the letter and spirit of the law. For example, DOE takes about 100 days to respond to public records requests.

Nomiki Konst: Open Records has made the filing of FOIL requests more broadly accessible. But city compliance still has significant problems and shortcomings. Many agencies do not have enough staff and resources dedicated to FOIL requests and do not take FOIL requests seriously enough. Certain agencies, like DOE, have been egregiously unresponsive. We also have a problem with a lack of transparency in terms of compliance with requests, exemptions, and release of information, leaving the system open to abuse, delay, and obstruction.

Melissa Mark-Viverito: FOIL is an extremely valuable tool to hold our city agencies accountable. We need to continue to improve Open Data and resolve responses to requests more quickly, especially in areas that are in crisis, such as NYCHA and the MTA.

2. Is any reform necessary to make the system work better?

Melissa Mark-Viverito: We need more staff dedicated to answering FOIL requests in each department, because of backlogs and other administrative issues. I would also establish new units within the office of Public Advocate, including an Office of Investigations and Reporting, to ensure FOIL requests are answered in a timely manner.

Rafael Espinal: FOIL reform would help strengthen democracy in our city. The process should be made simpler and each agency should dedicate a number of staff according to how many FOIL requests that agency gets. The office of the Public Advocate should be in charge of monitoring and oversight for FOIL.

Ydanis Rodriguez: One of the main complaints we hear about FOIL procedure in NYC agencies is the arbitrary time to push back the response time. I believe we must standardize not only laws but also operating procedures to comply with FOIL requests. Many of the laws passed by us in the City Council are on target but city agencies have failed to implement them.

Dawn Smalls: Two reforms that I think could be made are 1) working with advocates to make sure city agencies are using the Open FOIL online system and identifying gaps either by agency or city-wide to help make the system more efficient and 2) increasing the staff dedicated to processing FOIL requests so the public gets answers and information in a timely manner. Right now, staffing FOIL requests is not a priority for many agencies who have only a handful of staff dedicated to handling requests as the population, and therefore demand for information grows.

Nomiki Konst: We need more uniform guidance across all agencies for compliance, allocating resources, and designating authority for FOIL requests. We need to fine agencies for non-compliance. We need to impose penalties on public officials who are found to abuse and obstruct compliance. And we need a more independent, accessible, and transparent appeals process.

Jared Rich: Obviously there must be reform, as the system is simply not working as it is currently set up. We, as a people, have the right to transparency in our system. The fact that answers can be delayed by almost a year seems to be an effort to diffuse anger regarding the issues being requested. It seems to me that a more valid system would be to have every request issued to an independent body of individuals with a system in place to have all of the answers requested in one venue. We can’t continue playing the scavenger hunt and pass the buck game that currently occurs every time a request is made.

3. What role would the public advocate play in monitoring, operating or reforming the system if you are elected?

Ydanis Rodriguez: I will use the powerful pulpit of the office Public Advocate to make city government more transparent and in full compliance with its own laws and regulations. If necessary, I’ll use any legal recourse to assist those seeking compliance.

Michael Blake:I will focus on publicly available information that will ensure transparency and accountability for jobs and justice. I am also concerned about data and protecting the privacy of immigrants and communities of color. FOIL compliance is a significant issue and I will be a staunch advocate for agencies responsiveness to FOIL and the public listing of data and information to reduce the necessity of requesting the information.

Nomiki Konst: The Public Advocate must press for all of these reforms while continually tracking and publicizing the city’s FOIL compliance failures and abuses.

Melissa Mark-Viverito: As I previously mentioned, I want to create Office of Investigations and Reporting. This office will be designed to root out corruption, mismanagement, and other systemic problems affecting the lives of New Yorkers by making quicker access to information a priority. FOIL requests should be taken seriously, and I believe the Public Advocate’s office is the perfect venue for constituents and journalists to get answers about their government.

David Eisenbach: As Public Advocate I will bring transparency to city agencies by becoming the Whistleblower-In-Chief who welcomes complaints from government officials about waste, fraud and corruption and I will shield the whistleblowers and expose the crimes.

Rafael Espinal: Well, rather than the city monitor the OpenRecords portal the Public Advocate should. The Public Advocate should require a monthly report from each agency detailing requests, types of request, dates on which requests were made, and real time response times. The assessment of the records should be made public by the Advocate’s office on a quarterly basis.

Jared Rich: As with all of the major issues presented in this campaign, and as with all issues that the people of New York City are and should be concerned with, there is an enormous amount of waste in our system. We must look into overhauling the entire FOIL unit to make them a more cohesive and more efficient system. One of the main powers of the Public Advocate is to use the bully pulpit to shine a light on areas that need to be exposed, and I intend to cast that light on the FOIL process in an effort to increase transparency in Government.

Dawn Smalls: As Public Advocate, I would specifically push for the MTA to develop an online portal for FOI requests and, as referenced above, I’d partner with advocates to across city agencies to evaluate whether Open FOIL is truly working for public use. Additionally, as an experienced litigator, I will not hesitate to sue government agencies in order to get information out to the public. In fact, I have already stated that in my first 30 days in office I will sue NYCHA for information so that we can have a transparent understanding of the state of repair requests and why they are being not being resolved on a timely basis.

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