Should a Councilor Ever Have to FOIL?Say It Ain't So, Mr. Manager and Mr. Attorney

Some of her colleagues on Council took Augustine to task for using FOILed records (i.e., records obtained under New York’s Freedom of Information Law) in our recent post on filling it up at the City pump. One of our readers expressed the same concern in a signed comment to the post: “Forgive me for being rude, but the City of Geneva appears to function in a unique way. It is not common for Council members to have to file a FOIL request to talk to their own comptroller about the budget.”

We agree that it’s probably not common for Council members to file FOIL requests for public records available to any ordinary citizen for the asking. But there’s a reason we FOIL documents, thanks to an absurd protocol established by the previous City Manager and supported by the legal opinion of the previous City Attorney. In fact, that very issue is one which helped to launch NoStringsGeneva, back in March 2007. In our March 25, 2007 post, titled, “Shouldn’t City Councilors have Access to Public Documents?” we described the difficulty Capraro and Augustine had in getting a simple copy of the total compensation spreadsheet for then City Manager, Rich Rising.

Our request for the record was blocked by then-City Attorney, Clark Cannon. According to Cannon, an individual Councilor’s request for a public document was a violation of Section 13.2 of the City Charter. According to Cannon, “neither the City Council nor any member thereof shall give orders to any subordinate of the City Manager.”

Capraro, who was then on Council and made the request for the document in question, was being told by the City Attorney that he could not ask the Comptroller for a photocopy of a record! Of course, any member of the public, simply by filing a FOIL request, would have been given the record on demand. Instead, the Attorney told Capraro that the request should be made by “the entire Council” and only “in consultation with the City Manager.”

At the time we thought it sounded quite ridiculous for City Councilors to have less access to public records than members of the public not serving on City Council. We also thought it was quite ridiculous for City Councilors to have their requests mediated by the City Manager, presumably so that he would have a chance to ‘explain’ things before Councilors asked too many questions. We still believe that unfiltered, direct access to public records by all people is essential to government accountability.

Since 2007, we have used documents gained through FOIL requests in several posts. We posted public documents about the County Revolving Loan program, about the City’s Wastewater Treatment plant performance, about attorney’s costs. Usually they are simply the fact basis for our fact-based point of view, but sometimes, as in the case with the NYS Attorney General’s investigation, FOILing turns up records that reveal the secrets of City business, unknown to Council itself, such as the bill for legal fees for Rising’s proffer agreement.

Because we rely on only publicly available information, FOIL requests over the years have ensured that we have never violated our ‘no leaks, no gossip’ policy. While we do believe that City Councilors should have unimpeded access to city records, and therefore not be required to file FOIL requests, we want to make it clear that when City Councilors challenge Augustine’s use of the FOIL, their anger is misplaced. If Councilors and the public want City Councilors to refrain from FOIL requests, then the policy requiring it should be lifted. We believe the City Manager and the City Attorney and, by consent, Council itself can clear up this matter by announcing an end to the information lock down of the previous administration and allowing unmediated, direct access to the public record by Council members. In the meantime, we’ll continue accessing public records in the way clearly allowed and promoted under the law.