Shouldn't Council Have Access to Public Documents?

In the wake of the City Manager’s 2005 salary increase (granted by a 5-4 vote on February 2, 2007), we were asked to embark on a process to consider a salary increase for 2006.
This decision (whether or not to grant another raise so quickly) is not just a matter of the City Manager’s performance, we must also consider what the city can afford, what other ‘perks’ or incentives are being offered, etc.
Capraro e-mailed the City Comptroller, asking for a spreadsheet of the City Manager’s total compensation. This is public information, available to anyone who wants to fill out a Freedom of Information Act request. You would think that City Councilors would have ready access to that information. But instead of the information, Capraro received a reprimand from the City Attorney that read:

Your most recent request to Tara Clark pertaining to Rich’s salary and benefits has been referred to me for response. While we have in the past attempted to be liberal in this regard I am concerned that your direction to employees of the City without notice to the City Manager or approval by the City Council as a whole is in violation of Section 3.12 of the City Charter. As a consequence, I have advised her not to provide salary and benefit information pending request by the City Council during it’s normal process of evaluation of the City Manager. As you can imagine, individual Council members making requests of City staff without coordination through the City Manager is disruptive to the proper administration of the City and as a consequence will no longer be permitted. [Clark Cannon (2/15/07)]

This didn’t sound right. Was it being ‘liberal’ to provide public information to a public official? Was asking the Comptroller for a spreadsheet really ‘disruptive to the proper administration of the City’? And was it really up to the City Manager to control access to public documents? Capraro contacted the NYS Committee on Open Government for an answer.

He spoke with Camille Jobin-Davis, an attorney and assistant director of the Center. Jobin-Davis said Cannon’s opinion was “silly,” and proceeded to further discredit Cannon’s opinion as she discussed the body of opinion in support of Capraro’s request. She also sent relevant published opinions on the matter, including

From my perspective, with certain minor exceptions, the records containing the information sought must be disclosed. In general, records reflective of payments made to present or former public employees are, in my view, clearly available. Similarly, time and attendance records are accessible. In this regard, I offer the following comments.
As a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law. [Robert Freeman, NYS Open Government, 1996]

So Capraro e-mailed the City Attorney to let him know what he had found out. His e-mail concluded,

Frankly, they found your assertion that my request for records was somehow giving "direction" to a worker, and would not be allowed by the Charter, to be over the top. The section of the Charter you cite, 3.12, prohibits Councilors from "interfering in administration." It concerns me that you would regard my request for information as somehow interfering in administration. For those interested in open government and in reviewing some of the body of opinion coming into play here, please check out these pages [for a copy of the links, view the Open Meetings/Public Documents section of the Resources Page] Bottom line, the law says I am entitled to those records. [Chip Capraro, 2/15/07]

The City Attorney continued to insist that Capraro was out of line in requesting the salary information. He responded to Capraro’s e-mail with the following (note the opening sarcasm):

Thank you for seeking additional opinion concerning your request of staff members to provide information without notice to the City Manager. While I was not privy to your conversation with the Office of the Committee on Open Government, I cannot believe that they completely disregarded the clear language of our City Charter, which states in part “neither the City Council or any member thereof shall give orders to any subordinate of the City Manager”. Your e-mail to Tara and Val directed them to provide you information without consultation with the City Manager as required by Section 3.12 of the City Charter. It seems to me that the intent of this section was to prevent just this type of interaction with staff by individual Council members. It was never my, nor Rich’s intent to deny the requested information to you or Council but only to follow the process which is clearly set out in Section 3.12. Your subsequent e-mail to Rich was appropriate and will be acted upon, although I continue to believe that it would be more efficient for the entire Council to request this information during their evaluation process for 2006.[Clark Cannon, 2/16/07]

The City Attorney was saying that there could be no interaction between a City Councilor and any city employee. Instead, Councilors must submit all requests for information to the City Manager, even if the information requested is in reference to the City Manager’s performance evaluation. Capraro’s response, which included the following:

Requesting a record is simply not an "order" or an "exercise of administrative duties." Requesting a record is also not "interfering in administration." That section of the Charter was clearly intended to guard against Councilors ordering snow plows out, or light bulbs changed, and the like. No where in that section does it refer to the City Manager as having anything to do with requests for records…The few times I have asked for any records, they have all been FOIL-able. Why you and Rich and some colleagues on Council want to restrict access to such records is beyond me. Your opinion has the potential to completely eliminate checks and balances from City government by leaving legislative requests for access to public records in the control of the executive.
On the Open Government Committee, I urge you to call or write them, giving them the full text of the opinion you stated in your e-mail to me, and the full text of the section of the Charter you cite, and listen to what they have to say. I urge you also to review the written opinions they provided and identify which parts of the opinion you disagree with. The body of legal opinion is overwhelmingly in favor of access to records, whether it be upon the request of elected officials or of the general public. [Chip Capraro (2/16/07)]


went unanswered. So, we ask again: Shouldn’t Council Have Access to Public Documents?