A poster over at SpeakupWNY shared the automatic response one receives when, prompted by Buffalo News editor Margaret Sullivan, one writes to Mayor Byron Brown to complain about the city stonewalling the media on Freedom of Information requests.

Here it is:

The Mayor’s Office has received your e-mail regarding the August 9, 2009 column written by the editor of the Buffalo News.

Let me make this statement as clearly as possible: The Mayor’s Administration has obeyed and will continue to obey the law, whether it involves Freedom of Information (FOI) law issues or any other issue. There is absolutely no evidence to the contrary.

It was the editor who brought politics into her argument regarding the release of public documents and the upcoming mayoral primary election. But, as the editor knows well, if the paper truly has a quarrel regarding FOI and the availability of public documents from the city, the paper has plenty of legal recourse to follow. To date, the paper has not done so.

So this is not about obeying the law – the Administration, in every instance of processing a FOI request, whether from the Buffalo News or any other media outlet, has followed the letter of the law, without exception. This was clearly a political statement by the paper.

There are always two sides to every story. On Sunday you heard one side and now you have the other side.

Thank you for sharing your comments with us, we always appreciate the input we receive from the public.

Sincerely,

Peter K. Cutler
Director of Communications
Office of the Mayor

Paragraph 1: True enough.

Paragraph 2: Not true enough. There is indeed evidence that the mayor’s office has ignored the law on FOIL requests. Artvoice has often been made to wait more that five business days for acknowledgment of a FOIL request, in violation of the law, and more than 30 business days for the information we’ve requested, in violation of the law. On a few occasions, we have never received the information requested or an explanation as to why we have not—again, a violation of the law. Based on Sullivan’s column, it sounds like the News has similar problems with the mayor’s office. I don’t always rush to defend the Buffalo News, but I’m pretty sure Sullivan and reporter Jim Heaney would not say they’ve been stonewalled unless it’s true.

Paragraph 3: I’m not sure where Cutler see politics in Sullivan’s column. But I don’t doubt he does: It’s primary season, so he’ll imagine that any criticism of the Brown administration is steeped in politics. As to the existence of legal recourse, he’s right—the News can take the city to court. In doing so, the News guarantees that the wait for the release of public documents will be prolonged even further. If the court finds the city has stonewalled the News (or Artvoice, or an individual citizen), the city receives a slap on the wrist. This is a good state to be a journalist generally speaking, in terms of law, but FOIL has no teeth, and neither do our open meetings statutes or our campaign finance law.

Paragraph 4: Again, that clearly not true, and again, there’s nothing political in Sullivan’s statement. She did not endorse the mayor’s opponent in her column. I doubt very much that her paper will, either.

Paragraph 5: In fact there are at least two sides to every story, usually far more than two. Cutler’s side of the story is full of holes.

Paragraph 6: Well, I suppose that’s pro forma but it certainly rings false. Is the mayor’s office truly grateful for this criticism? Does the mayor appreciate it?

On April Fool’s Day we filed a FOIL request with Great Lakes Health System of Western New York, the entity formerly known as Newco, that was created by the Berger Commission to consolidate private not for profit Kaleida Health and Erie County Medical Center, a public benefit corporation.

Last Wednesday (May 20), we received some of the documents we requested on a disk. This was a gracious gesture, since at 25 cents a page, we would have had to pay over $30 for hard copies of the legal bills paid by Western New York Health System (WNYHS) and Kaleida Health to the law firm Garfunkel, Wild & Travis, P.C., of Great Neck, Long Island from November 1, 2007 through April 1, 2009. Click here to see all 128 pages of legal bills.

It appears the firm took in close to $400,000 handling various legal matters for the new entity, including around $165,000 representing Great Lakes Health in the Reese v. Daines case, which was brought seeking openness to board meetings and records for the press and public after Freedom of Information requests had been denied to this newspaper.

That’s the case they lost on September 12, 2008, when Hon Patrick H. NeMoyer ruled that WNYHS must “adhere to the requirements of the Open Meetings Law until such time as the hospital merger is completed and ECMCC is dissolved as a public benefit corporation.”

Rather than accept that ruling and abide by the law, the entity now known as Great Lakes Health decided to battle on in the courts, in the interest of darkness and secrecy, and wound up losing that too, unanimously, in the Appellate Division, Fourth Judicial Department of the Supreme Court of the State of New York in Rochester on May 1, 2009.

The only thing they got from the appeal was a reversal of Judge NeMoyer’s ruling that awarded attorney’s fees to Peter A. Reese, who argued the case against WNYHS. Had they simply paid Reese’s bill, it would have saved them a lot of money, judging by the $480/hour Garfunkel, Wild & Travis attorney Leonard M. Rosenberg charged them, for example.

If you download the pdf available above, check out invoice number 197668 dated January 31, 2009. Rosenberg made almost $15,000 for thirty hours of work that was laughed out of court. Lower members of the firm brought that one bill to $24,160.21. That amount is typical of the sums paid on a monthly basis to a law firm located on Long Island by the group that claims it is “unveiling a bold, new model of healthcare delivery for Western New York.”

Isn’t it also nice to hear that partner Robert Andrew Wild was named Board Chair for United Way of Long Island according to the law firm’s Web site? I wonder how much he donated to the United Way of Buffalo and Erie County, after sucking so much money from the area in a failed attempt to keep the residents of our region completely in the dark about the future of our health care.

Meanwhile the matter of Reese v. Daines is headed for the textbooks. An updated civil practice law book published by Matthew Bender & Co., will be covering the successful Article 78 petition, so all New York State attorneys can learn from the case. Even the high priced ones in Great Neck.

Wednesday, Artvoice Editor Geoff Kelly posted a dated list of city employees and what they earned. This provoked touchy responses from some city hall employees, as well as from Michael Hoffert, Vice President, AFSCME Local 650 AFL-CIO—comparing the article to supermarket tabloid-style journalism.

But what makes me pig-biting mad is that the information we printed is not some top-secret document, highly classified in the interest of national security. There were no “deep throat” sorts of meetings in dark parking lots to obtain it. That information is the property of every city resident—indeed, every American.

How people handle the truth is often very telling.

Some people thanked Geoff for posting the information, and asked that we look into other organizations. We’ll try, but here’s how you can help: Download this sample-foil-request-for-records, tailor it to suit your particular request, and send it off to the public officer of your choice. There are thousands to choose from in New York alone.

You can do it via email or snail mail. You don’t have to be a journalist, or a lawyer, or a judge. All you have to be is curious about your government, and possess the tenacity to fill out a one-page boilerplate, address it to the records officer or the head of whatever agency you choose to learn about, then put it in the mailbox or click send.

By law, you must receive a response either granting your request, or explaining—in convoluted legalese—the reason the information is being denied. At which point, you will be directed where to appeal the denial. Go ahead and do so. It takes two seconds, and if nothing else, you’ll have the satisfaction that some lawyer in some state office is actually doing some work for his taxpayer-funded salary and benefits.

In most cases, you’ll be surprised by what gets exposed. Sometimes, even a denial can tell you a lot about an organization. Bottom line? It’s all right there under our noses. All we have to do is ask for it.

Judging by the letters we receive, and the letters to the editor at any of our local papers, there are a lot of you out there who are frustrated and suspicious of the whole culture of secrecy cultivated by the powers that be. While writing a letter to the editor can be cathartic, and sounding off on a blog can help further public discussion, don’t forget you too have the power to demand answers from the top. Knowledge is power, and gaining knowledge is an enabling act. Remember, our government, and by extension, our public agencies, were created and should remain “of the people, by the people, and for the people.”

Shame on any American who would criticize the release of public information. To do so is to advocate an ignorant populace. Generations of men and women have given their lives that we might live in a society where the freedom to petition authority is protected by law. Let freedom ring!

Good luck with your searches. Let us know what you find out. And God Bless America.

Newsweek has an interesting article about secrecy that’s well worth reading. Read why, according to the late Daniel Patrick Moynihan, secrecy isn’t just antidemocratic, it’s stupid.

It’s been seven business days since I filed a Freedom of Information Act request with the City of Buffalo for all financial records related to the Mayor’s Impact Team since January 1, 2006. In that time…

• the chief of the Mayor’s Impact Team, the venerable political hack Bill Buyers, was caught by cameramen from Channel 7 with two of his crew working on his own home on city time, using city equipment (Day 1);
• Mayor Byron Brown suspended Buyers for 15 days without pay and his two crewmembers for five days without pay (Day 1);
• Assistant Corporation Counsel Cavette Chambers acknowledged receipt of my email FOIL request and promised to answer in 10 business days (Day 2);
• Councilmembers LoCurto, Kearns, and Fontana filed a resolution requesting that City Comptroller Andy Sanfilippo audit the Mayor’s Impact Team (Day 2);
• the Office of the Comptroller announced its intention to pursue an audit (Day 3).

Today, I asked Chambers et alia to shorten the timeline for fulfilling my request, arguing that the Comptroller’s intention to perform an audit suggests that the material I requested is being compiled for that purpose. I told Chambers that I expected to receive the requested information at the same time, if not before, the City Comptroller receives it. After all, I asked first, and the law requires that public records demanded under FOIL be furnished as quickly as possible.

Meantime, on Saturday morning I stopped by the Amherst Street VFW post where Buyers hosts a monthly breakfast, to see who would show up to support him (and, I guess to eat for free). There were maybe 50 or so cars in the parking lot, and Buyers stood by the back entrance glad-handing folks as they arrived.

I stayed long enough to see North District Councilmember Joe Golombek arrive.

Delaware District Councilmember Mike LoCurto, South District Councilmember Mickey Kearns, and Lovejoy District Councilmember Rich Fontana have filed a resolution asking City Comptroller Andy SanFilippo to audit the Mayor’s Impact Team.

Last Monday I spoke with Tony Farina in the Comptroller’s office, who told me that he knew of no past audit of the Mayor’s Impact Team, and added that none was likely to be done without an external request.

Here’s that external request:

RESOLUTION

BY: MR. LoCURTO
COSPONSORS: MR. FONTANA, MR. KEARNS

RE: Requesting an Audit of Mayor’s Impact Team

WHEREAS: three city workers with the Mayor’s Impact Team were recently suspended without pay pending an investigation for allegedly performing landscaping work during regular working hours Friday at the private property of one of the individuals; and

WHEREAS: these actions represent the misuse of City workers and City vehicles; and

WHEREAS: unfortunately, this is not the first time misuse of City vehicles by the Mayor’s Impact Team has been documented; and

WHEREAS: because of the involvement of many different departments, allocations to the Mayor’s Impact Team are not itemized in the City’s Annual Budget; and

WHEREAS: the actions of a select few should not damage the reputation and work ethic of the Mayor’s Impact Team and the good that it has been able to accomplish; and

WHEREAS: the misuse of taxpayer money breeds mistrust of and cynicism in government.

NOW, THEREFOR BE IT RESOLVED THAT:

The Common Council requests that the City Comptroller performs an immediate audit of the Mayor’s Impact Team’s operations and financial expenditures including equipment and cell phone use; and that given the gravity of the allegations, that this report be returned to this honorable body as soon as possible.

AND BE IT FURTHER RESOLVED THAT:

This matter be referred to the appropriate committee of the Common Council for further consideration.

___________________ ___________________ _____________________
Michael J. LoCurto Michael P. Kearns Richard A. Fontana

This is the quickest response to a FOIL request Artvoice has ever received from the City of Buffalo. Less than two business days after I requested by email that the city give me all records related to the budget and expenditures of the Mayor’s Impact Team since January 1, 2006, Assistant Corporation Counsel Cavette Chambers has acknowledged receipt of my request:

Mr. Kelly:

Pursuant to Public Officers Law section 89(3), this correspondence will serve as an acknowledgment of your Freedom of Information Law request.

Please be advised that your request has been forwarded to the department of Administration and Finance, Public Works Parks & Streets, and the director of the Quality of Life Programs for a response. Each respective department will conduct a diligent search of its records to determine whether it is in possession of the requested records. Wherein sufficient time is needed to locate, compile, and review the requested records, please allow ten (10) business days from the date of this correspondence for a determination regarding your request.

Should you have any questions regarding the status of your request, you may contact the following individuals:
Donna Estrich with the Dept of Administration and Finance, Charles Masi with the Department of Public Works Parks & Streets, and/or Thomas Smith with Quality of Life Programs.

Sincerely,

Cavette A. Chambers
Assistant Corporation Counsel
City of Buffalo Department of Law
65 Niagara Square
1113 City Hall
Buffalo, New York 14202
Office: 716.851.4316
Fax: 716.851.4105
Email: cchambers@city-buffalo.com

So the wheels are turning, and the city now has to determine whether such records exist (which, if they don’t, would be a inexcusable), and, assuming they do, to compile them and send them to me (which, if that isn’t half an hour’s work, suggests some pretty poor bookkeeping methods).

The day after I FOILed these documents, of course, Bill Buyers, the head of the Mayor’s Impact Team was caught by TV crews with two city laborers working on his own house on city time. Mayor Byron Brown suspended Buyers for 15 days without pay and removed him as the team’s supervisor, and suspended his subordinates for five days without pay…and now people are beginning to roll out their Bill Buyers stories: that he’s the guy who got Anthony Capozzi arrested for a rape and murder that he didn’t commit but for which he served 22 years in jail; that Buyers last got in trouble when neighbors complained he dragged his dog on a leash hanging out his truck window; that he foots the bill for big breakfasts for 200 people once a month at the VFW post on Amherst Street; that he is protected by strong political ties.

Plus there’s the rumor that led me to file my FOIL in the first place, before Buyers got busted using the Mayor’s Impact Team to spring-clean his own front yard. More on that soon, I hope.

Day 1 of my FOIL watch was a bust: Friday flew by with nary a word from Peter Cutler, director of communications for Mayor Byron Brown. I filed a request with Cutler Thursday evening under New York’s Freedom of Information Law for all budget and expenditure records for the Mayor’s Impact Team since January 1, 2006. By law he’s got five business days just to acknowledge my email request, then a month to fulfill it or explain why he won’t.

Of course, Cutler must have had a busy day on Friday, what with TV crews taping Mayor’s Impact Team head Bill Buyers and two of his crew working in Buyers’ yard on city time, yielding a followup story in the Buffalo News. Who knew my request would be so timely?

Buyers and his two underlings received 15-day suspensions for the offense, because, according to Cutler, it was a first offense. I’m betting here that a careful audit of the Mayor’s Impact Team, which begins with Cutler acknowledging and fulfilling my FOIL request, will suggest it was not the first time the Mayor’s Impact Team used city time and city-purchased materials for private benefit.

Day 2 of my FOIL watch begins Monday morning.

A couple months ago, fed up with the City of Buffalo’s policy on sharing public documents, I wrote a piece about it. Basically the city’s policy is this: There is no such thing as a public document that can be shared with a citizen without that citizen filing a formal request under the state’s Freedom of Information Law (FOIL). The City of Buffalo, in fact, pretends that New York State law compels the city to require a formal FOIL request, even for something so innocuous as the minutes of a meeting that are normally posted online but, for some reason or another, have not been.

That’s nonsense, according to the state’s Committee on Open Government, as I wrote in my article. But the policy allows the city to control and delay the flow of information. In the case of the news media, the policy gives the administration time to anticipate potentially negative stories. The policy forces journalists to pursue information through back channels, which opens their sources to the repercussions that attend breaking the administration’s lockdown policy on sharing information.

The FOIL process comes with built-in delays: The recipient of a request has five business days to acknowledge receipt of your request, even in these modern times when most FOIL requests are filed by email. The recipient has 20 additional business days to provide the information you’ve requested or offer a convincing explanation why they can’t. The city often ignores even those fairly generous constraints.

Why am I rehashing all this today, besides that it’s a frustration that nags at me each and every morning?

Because yesterday afternoon at 5:29pm, I filed a FOIL request with Peter Cutler, Mayor Byron Brown’s director of communications, cutting out the middle men. (This is how it goes usually: You ask the person who might have a document if you can have it; he or she tells you to file a FOIL with Peter Cutler; Cutler forwards your request around and copies in Assistant Corporation Counsel Cavette Chambers; they mull it over; when and if they respond, Chambers forwards the appropriate documents and explanations to you.) The requests asks for all budgeting and expenditure documents related to the Mayor’s Impact Team since January 1, 2006.

I thought that, if only for my own amusement, I’d track the city’s response time. So today is Day 1.

You can read the text of my FOIL request to Peter Cutler after the jump…

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