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Archive for March, 2016
Appointment of Ex-Cuomo Aide Further Undermines JCOPE’s Credibility as Independent, Effective Ethics Enforcer
Yesterday, the Joint Committee on Public Ethics—New York’s ethics enforcement agency—selected Seth Agata as its new executive director. We believe this is a big mistake and further undermine the credibility of an agency that has struggled to independently and effectively investigate and enforce violations of state ethics laws by the governor, legislature, state employees, and lobbyists.
It is simply not credible that Mr. Agata, who was Governor Cuomo’s lawyer and represented him on ethics issues, can objectively investigate potential ethical violations by the governor or his political enemies. Mr. Agata is the third top Cuomo aid selected to run JCOPE in the last five years. To us, this is a clear sign that the governor has an undue influence on JCOPE, and that JCOPE is subject to the same political forces that have mired Albany in endless corruption scandals.
In our eyes, JCOPE will have little credibility until new laws are passed which prohibit the Committee from appointing an executive director, or senior managers, who have worked for a sitting governor, attorney general, comptroller, the legislature, or a firm which lobbies the state of New York. There are plenty of experts in investigating and enforcing complex government regulations, including ex-US assistant attorneys, former FBI agents and ex-SEC officials to name a few. Albany may not want an independent executive director for JCOPE, but it badly needs one.
This is not a criticism of Mr. Agata personally. He is widely respected as a knowledgeable and hardworking professional. But we believe that it is incredibly difficult for any person to discard long-held loyalties and personal obligations. Mr. Agata served in a trusted position very close to Governor Cuomo, and even represented the governor before JCOPE. The conflict of interest is obvious, and Mr. Agata is the wrong choice to run JCOPE less than six months after Sheldon Silver and Dean Skelos were convicted in corruption trials which laid bare Albany’s culture of legal and illegal corruption.
In Letter to Legislature, Groups Express Concern Over Governor’s Art. VII Changes to FOIL: Attorneys’ Fees, Critical Infrastructure
Dear Majority Leader Flanagan and Speaker Heastie:
We write today to urge you to use your one house budget bills to either substantially improve or reject two proposed changes to the Freedom of Information Law contained in Governor Cuomo’s Article VII budget bills.
After careful analysis, we have concluded that two of these changes are significant steps backwards for the state’s key “sunshine” law. They would reduce the transparency of our state and local governments. Accordingly and regrettably, our groups cannot support the governor’s FOIL reform package as drafted.
Governor Cuomo’s Article VII bill weakens FOIL by:
- Making it harder for the public to get attorneys’ fees in FOIL cases in which they clearly prevail and an agency acted unreasonably. This is by far the most important of the seven proposed changes to FOIL. Unfortunately, we believe this will significantly weaken FOIL by creating a complex new mechanism and introduces to FOIL a legal test used to award punitive damages, which puts an extraordinary burden on the FOILer to show an agency “clearly disregarded” the law. It also eliminates a judge’s discretion to award fees to a FOILer who wins a case when an agency had “no reasonable basis” for refusing to disclose a record.
- Creating a new exception for “Critical Infrastructure.” FOIL already allows agencies to withhold records when disclosure could endanger the life or safety of any person. Transparency groups have repeatedly opposed similar standalone bills, believing they will be used by agencies as an excuse to withhold records they find embarrassing or inconvenient. We know of no cases in which a judge has ordered an agency to release records that would endanger critical infrastructure. We recommend this provision be rejected.
Peter Henner, Counselor
Alliance for Environmental Renewal
Susan Lerner, Executive Director
Common Cause – NY
Peter Iwanowicz, Executive Director
Environmental Advocates of NY
Dare Thompson, President
League of Women Voters – NYS
Seymour W. James, Attorney-in-Chief
Legal Aid Society
Mal Leary, President
National Freedom of Information Coalition
Robert Perry, Legislative Director
New York Civil Liberties Union
McGregor Smyth, Executive Director
NY Lawyers for the Public Interest
Blair Horner, Executive Director
NY Public Interest Research Group
John Kaehny, Executive Director
Todd Ommen, Supervising Attorney
Pace Environmental Law Clinic
Veronica Vanterpool, Executive Director
Tri-State Transportation Campaign
- Senator Jeff Klein, Leader Independent Democratic Conference Letter
- Senator Andrea Stewart-Cousins, Minority Leader
- Assemblymember Brian Kolb, Minority Leader
- Senator John Bonacic, Chair Senate Judiciary Committee
- Assembly Member Helene Weinstein, Chair Assembly Judiciary Committee
- Senator Andrew Lanza, Chair Senate Investigations and Government Operations
- Assembly Member Crystal Peoples-Stokes, Chair Assembly Governmental Operations
- FOIL stakeholder groups
Important step towards faster, fairer FOIL responses
New York City—Today, major New York City civic groups thanked Maya Wiley, Counsel to Mayor Bill de Blasio, Commissioner Pauline Toole and her team at the NYC Department of Records, and NYC DoITT for launching the beta version of the new OpenRECORDS website. The groups say the Open RECORDS website is an important first step towards making New York City’s FOIL process fairer, more transparent, and more efficient.
Based on the 2014 study Beyond Magic Markers, the groups think the new website, when adopted by all agencies and including a full set of features, will save taxpayers as much as $12 million a year in reduced FOIL costs.
The groups are optimistic the site will continue to evolve and will help reduce the widespread delays and agency non-compliance that Public Advocate Bill de Blasio documented in his 2013 report Breaking Through Bureaucracy.
Additionally, the groups believe the new website will help show what data is most frequently FOILed and should be published on the city’s Open Data Portal.
In early 2014, dozens of organizations, led by the NYC Transparency Working Group, wrote in support of the “OpenFOIL” bill, which mandated the creation of a website displaying all Freedom of Information Law requests and responses like the federal FOIA Online portal. That bill was sidelined by City Hall in favor of the just-launched OpenRECORDS portal, which contains few of the transparency features called for in the council bill.
Despite praise for an important first step, the groups note that the launch version of the Open Records portal is far less transparent than the Port Authority’s FOI web page, or the federal government’s FOIA Online portal: both of which publish the names of requesters, the request, and the agency response. The groups say that for the NYC OpenRECORDS portal to be at all useful as a transparency tool, it will have to equal these sites. The groups also note that journalists submit less than 2% of all FOIL requests in NYC and NYS, and that FOIL needs to work for the entire public.
Lastly, the groups say the new website provides an ideal opportunity for NYC to create a uniform FOIL process, for all agencies, including a written guidance like the U.S. Department of Justice provides to federal agencies.
For Further Comment, Contact:
- Paula Segal, 596 Acres, 718-316-6092
- Noel Hidalgo, BetaNYC, 937-218-2422
- Bob Cohen, Citizen Action of New York, 212-523-0180
- Cathy Gray, League of Women Voters NYC, 212-725-3541
- Judith Goldiner, Legal Aid Society, 212-577-3332
- McGregor Smyth, NY Lawyers for the Public Interest, 212-244-4664
- Blair Horner, NY Public Interest Research Group, 518-436-0876
- Ben Fried, Open Plans, 917-388-9063
- David Moore, Participatory Politics Foundation, 917-753-3462
- Elena Conte, Pratt Center, 718-399-4416
- John Kaehny, Reinvent Albany, 917-388-9087
- John Raskin, Riders Alliance, 212-590-9427
- LaVita Tuff, Sunlight Foundation, 202-742-1520
- Paul White, Transportation Alternatives, 646-873-6008
- Veronica Vanterpool, Tri-State Transportation Campaign, 212-268-7474