How de Blasio Can Fix FOIL

Mayor Bill de Blasio has a record of fighting for freedom of information.

As Public Advocate, he introduced two bills to get city agencies to release more information to the public. Last April, he released a report detailing the major flaws in the city’s Freedom of Information Law (FOIL) request system. He led by example, posting the status of all FOIL requests to his office online. He even tried to resuscitate a budgetless and ignored commission to oversee the city’s public information and transparency.

But he had no power. The two bills died in the Council. His report, good for a few headlines when he sat in a distant fourth in the Democratic field for mayor, didn’t cause outrage. Not one city entity followed his lead on the FOIL tracker. And the commission he tried to bring back to life had one meeting and a short-lived website and has since returned to obscurity.

Now that he’s mayor, power is not a problem. And transparency advocates and chronic FOILers want him to use it to follow through on his promise to bring the city’s records request system into the 21st Century and usher in a new era of openness at City Hall.

To test how open the new era is, City Limits in late January sent FOIL requests to 10 city entities. The results were decidedly mixed.

In fairness, the administration is just a toddler trying to find its footing; de Blasio hasn’t finished hiring top officials at major city agencies and he is clearly still settling into his role as the chief executive of a city of 8 million people.

But the very problems de Blasio saw in the Bloomberg administration’s treatment of FOIL—a lack of acknowledgement that requests have been received, scant information about how to even make a request and steep delays in producing the required documents—are still an issue in the new administration.

Until pressed by this reporter, the mayor’s office never acknowledged the FOIL City Limits sent to it. Of the other nine entities we FOILed, all acknowledged receipt of a request, but only three have been fulfilled after more than 40 business days. This sluggishness is what de Blasio exposed as public advocate and is something he can reform as mayor.

FOIL frustrations at the mayor’s office

De Blasio’s report from last year, “Breaking Through Bureaucracy: Evaluating Government Responsiveness to Information Requests in New York City,” was a comprehensive study of how the city’s 38 mayoral agencies responded to requests for information from the public.

The report revealed a flawed and inconsistent FOIL process in New York where too many requests take too long to fulfill and some vanish forever into the bottomless belly of bureaucracy. De Blasio chastised agencies for failing to post information on how to submit a request online. He judged agencies based on those factors and, borrowing from Mayor Michael Bloomberg’s playbook, issued letter grades in a report card.

He offered recommendations on how to improve the system and used the report as an example of “Holding the Executive Branch Accountable for FOIL Compliance,” which was a bullet point on his mayoral campaign website, in a section titled, “The de Blasio Record on Good Government.”

De Blasio’s 2013 report was harsh to those agencies that do not fulfill their legal obligation to at least acknowledge receipt of every request within five business days, as state Freedom of Information Law requires. In his study, de Blasio determined about 10 percent of requests to city agencies never received a response, something, he wrote at the time, that “undermines the spirit of the Freedom of Information Law.”

Two months after City Limits filed its FOILs, the only entity that had not acknowledged a request was the mayor’s office. The office eventually did acknowledge the request, but only after they were alerted to their lack of response by this reporter.

When asked about the missing FOIL in mid-March, de Blasio’s office said they could not track down the request made by City Limits and claimed to have answered every request since he took office. According to the Office of the Counsel to the Mayor, the mayor’s office acknowledged receipt of all 41 requests received between January 1 and March 14. The mayor’s counsel who handles records requests was not appointed until the end of February, so that might explain the vanished request.

On March 24, the office finally acknowledged City Limits’ request.

“Please be advised that due to a processing error, this request was not brought to the proper office’s attention until Friday, March 21, 2014. We apologize for this delay as we strive to process all FOIL requests in a timely manner,” reads the letter.

De Blasio’s report also determined about half of city agencies failed to post information on how to submit a request on their websites.

“The City doesn’t make it easy to even file a request,” reads an introduction to the report.

But the mayor’s office also does not have information on how to submit a FOIL request on its new website and does not accept requests through e-mail or an online form. Without any information online, this reporter called 3-1-1 in late January to ask.

“When you say Freedom of Information Request, what do you mean?” the operator asked.

After a quick explanation of FOIL by this reporter, she said go to the mayor’s website. When informed the mayor’s new website did not have instructions on how to FOIL, the operator said to call him.

“Can you spell the new mayor’s last name for me?” the operator asked.

After a minute, the operator said de Blasio’s number was 212-NEW-YORK, but this number is the out-of-town number for 3-1-1. The second 3-1-1 operator provided the correct number for the mayor’s office, 212-788-3000. The first call there was redirected to an incomprehensible answering machine. The second call was redirected to a robot saying to call 9-1-1 if this is an emergency or to enter an extension number. A third call and an explanation to the secretary about the previous two calls resulted in a long wait and eventually, a response.

The secretary said to mail all FOIL requests to Mayor Bill de Blasio, City Hall, New York, N.Y., 10007. “Umm. attention FOIL,” she said. There was no way to submit the request online or by e-mail, she answered.

The FOIL frustrations at de Blasio’s City Hall are no worse than what citizens experienced under Mayor Bloomberg. Last year, this reporter called City Hall to learn how to FOIL the mayor’s office. The mayor’s press office gave the e-mail address of a counsel at City Hall. That e-mail bounced back with a referral to another e-mail address. Multiple e-mails to that address were never returned and, like the current administration, the Office of the Mayor never acknowledged receipt of any FOIL request.

Calls for a web portal

The heart of de Blasio’s report is a recommendation for the city to create an online portal where all requests will be processed and the records will be posted online to unify what has become a disjointed and scattered process. This proposal will be introduced as City Council legislation by either Councilman Ben Kallos or Councilman Jimmy Vacca and Manhattan Borough President Gale Brewer in the coming months, according to one of the writers of the bill, John Kaehny of Reinvent Albany, who also serves as co-chair of the New York City Transparency Working Group.

Kaehny says the bill was inspired by de Blasio’s recommendations.

“This Open FOIL bill is a synthesis of [de Blasio’s] recommendations. It creates a new process, a new workflow,” he says.

Modeled after the city’s 3-1-1 site, the portal would accept requests for records from the public and direct those requests to the agency responsible. The public, as well as city administrators, can keep track of requests and when completed, the record will be posted online for all to see. This policy, known as “One Strike, You’re In,” would remove the redundancy of filling the same request over and over, which good government groups say will save the city money.

“Centralizing the FOIL process will vastly save on the FOIL process itself. Putting it completely online … just means that it will be much cheaper,” Kaehny says.

He also says it would remove any bias agencies have toward certain requesters. The portal would shed light on agencies that may respond to requests more quickly for reporters or members of the public that are in their favor and requests that are ignored from people they don’t like.

New York City would not be the first to create such a system. Nearby, the Port Authority of New York and New Jersey took it upon itself to create a FOIL tracker. The federal government created Freedom of Information Act Online (FOIAOnline), which currently tracks requests to eight federal agencies.

The Asks
A rundown of our requests

Oakland recently launched a portal created by Code for America fellows and Philadelphia plans to start a pilot program using that same software.

One of the developers of Oakland’s RecordTrac, Cris Cristina, says the portal has cut down on frustration, not only from the public but from government workers who were spending a lot of time on requests. He says the records access officers were working as hard as they could, but now that the city can track exactly how many requests each agency gets, staff can be shifted around to help with the workload.

“The bottom line is the city spends less time on it now,” Cristina says.

Oakland’s RecordTrac is open source software, meaning New York City could use it for free to help create its own portal. The idea is not completely foreign to de Blasio, either. His staff in the public advocate’s office worked with Code for America to come up with a prototype of a similar portal called OpenUP NYC.

A spokesperson for the de Blasio administration would not comment on the web portal legislation, but says the administration is open to FOIL reform.

“We are committed to innovating and exploring new approaches to strengthening New Yorkers’ access to government information and improving City agencies responsiveness to FOIL requests,” reads a statement from Maya Wiley, counsel to the mayor.

Delays a major problem

As its name indicates, the Open FOIL portal would bring the FOIL process out from the shadows where only the requester knows how long it takes for a record to be released. In a response to City Limits’ FOIL request, the Department of Design and Construction (DDC) wrote back that because of the large volume of requests it receives, it “typically takes three to four months to process most FOIL requests.”

“However, some FOIL requests may take up to a year,” the letter continues. “Meanwhile, voluminous agency record requests may take a significantly longer amount of time.”

Waiting is part of the FOIL process and if a request is denied, the process gets even longer. A petitioner has the right to appeal if the request is denied. If an agency fails to respond within the required five business days, the request can be considered effectively denied and appealed as well. If an agency continues to ignores a request or denies releasing information a requester feels should be public, they can file a lawsuit, “an option beyond the capacity of many petitioners,” reads de Blasio’s report.

“I can’t tell you how disheartening it is: 10 days go by [and] they don’t call you back,” Gene Russianoff of the New York Public Interest Research Group’s Straphangers Campaign, says of filing FOIL requests.

Sometimes persistence is the only way to get an agency to give up information.

“It’s an eternal vigilance kind of thing,” he says.

Smaller steps possible

If the Council and the mayor support the OpenFOIL bill, at best it would not become a reality until later this year. But there are steps de Blasio can take now.

His first step could be doing what he did as public advocate: lead by example. He recommended that 3-1-1 and the city’s Green Book maintain contact information for all record access officers at city agencies. He could make that happen without legislation. He also has the power to ask all mayoral agencies to post information on how to submit a request on their websites. He could start by posting that information on his own website.

If the mayor were to require all city agencies to post information on how to FOIL on its website, including a way to FOIL through an online form or e-mail, it would cut down on paper, postage and ink. Many agencies, including the NYPD, Department of Buildings and Department of Correction, still require submissions be made through regular mail.

He could require agencies to respond to e-mail requests by e-mail. In City Limits’ test in January, four agencies — New York City Housing Authority, Department of Environmental Protection, Department of Finance and Department of Transportation — accepted requests online or through e-mail, but acknowledged the request through regular mail, each spending 48 cents to send a letter that could have easily been an e-mail.

If the city has more information on its activities available to the public online—de Blasio concluded in his FOIL report—there would be less strain on government to fill FOIL requests. In his report, and also in a bill he introduced to the Council last July, he wanted to require city agencies to proactively publish records of public interest, including meeting minutes, public notices, policies, scheduled hearings, public forms and a list of all contracts awarded by the agency online. At least for mayoral agencies, he would not be overstepping his bounds by making this happen through an executive order.

Read the Responses
Letters from city agencies about our FOIL fusillade

City Limits FOILs the de Blasio administration

These simple steps could be overseen by the Commission on Public Information and Communication (COPIC). Created by the City Council in 1989, the commission is supposed to oversee transparency in city government.

Kaehny calls COPIC the “poster child for what happens when city councils pass a bill that mayors don’t like.” A succession of mayors ignored the commission. It has no budget, no staff and has met twice in the last 25 years. De Blasio tried to bring it back to life in 2012 and he could bring it back to life for good, or at least during his tenure as mayor, by funding the commission when he releases his executive budget in May. The public advocate chairs the commission and its members include appointees from the mayor, public advocate and borough presidents.

Beyond the commission, the New York City Transparency Working Group, a coalition of civic and technology groups working for more transparency in city government, wants the administration to create a new post at City Hall: Chief Transparency Officer.

“The city badly needs some kind of open government or transparency official,” says Kaehny, adding that the position should oversee the city’s compliance with FOIL, as well as the Open Data Law of 2012, which requires city agencies to release datasets that are in the public interest online, and a separate law requiring all public meeting to be webcast, which went into effect recently.

Those duties could also fall to a commissioner of the Department of Records and Information Services (DORIS), whom de Blasio has yet to name. Bloomberg folded DORIS into the Department of Citywide Administrative Services, but de Blasio plans to build it back up again with its own commissioner, according to a senior adviser. When that is done, DORIS may be tasked with centralizing the city’s FOIL process.

If that is done, DORIS could monitor how FOIL officers at agencies are performing and recommend shifting staff and resources to accommodate any increase in demand due to the ease in filing requests.

Confidence in change

The advocates interviewed all said based on de Blasio’s record, they are confident change is on the way.

“[De Blasio] knows the problem personally, he issued the report. So I have a reason to believe he’ll be better on this,” says Russianoff.

And things may be changing already. Last year, de Blasio gave out two Fs to city agencies, the New York Police Department and NYCHA, for their FOIL compliance. The NYPD continues to live up to its reputation as an entity that is less transparent than the NSA or CIA, as Associated Press investigative reporters Matt Apuzzo and Adam Goldman said in a Huffington Post story last year. But NYCHA responded to at least one FOIL request in unusually speedy fashion.

Though NYCHA did not respond to 29 percent of requests during de Blasio’s study last year and took more than 60 days to respond to 51 percent of requests, it was the first agency to release a record during City Limits’ test. NYCHA’s records access officer responded with the information less than two weeks after the request was submitted via e-mail.

In response to this story, the de Blasio administration sent contact information for how to submit a FOIL request to the mayor’s office via e-mail, fax or regular mail.

Lisette A. Reisman
Special Assistant to the Counsel to the Mayor
Office of the Mayor
O: 212-341-5088
F: 212-312-0899
[email protected]

Editor’s Note: This paragraph was corrected. It initially indicated that a requester had no right to appeal if an agency failed to respond to a FOIL request.