NY FOI Ombudsmen: State Must Disclose Records Created in Ordinary Course of Business, Even if Relevant to Investigation

The NYS Committee on Open Government has formally reaffirmed that public records compiled in the normal course of government activity have to be disclosed under the Freedom of Information Law, even if those records are later the subjects of an ongoing criminal investigation. The Albany Times Union requested an advisory opinion after the state’s Homes and Community Renewal agency denied the paper’s FOIL request for the employment records of the governor’s former top advisor, Joe Percocco and Steven L. Aiello. In its denial, the agency claimed that these employment records were compiled for law enforcement purposes and were therefore exempt from disclosure. According to COOG’s eight page opinion on August 26, 2016, the records in question were created in the normal course of agency business, before the criminal investigation, and should be disclosed to the paper. COOG’s opinion centers on the U.S. Supreme Court’s 1988 decision in John Doe Agency, in which the court wrote that “compiled” refers to the time that records are collected and assembled, not the time when they are created.

We Ask Governor To Veto Bill Aimed At Making Life Miserable for Watchdog Groups

Sometime after midnight on the last day of the legislative session — with zero public hearings, public review or consultation — Governor Cuomo rammed through a bill that includes very vague and very broad new reporting requirements for charitable groups which engage in lobbying or coordination with related charitable groups. The bill, A.10742 is opposed by all of the government watchdog groups and the NYCLU. The bill has two parts, the first part tries to fill the hole in campaign finance rules the Supreme Court created with its Citizens United decision. The bill has solid language for making it harder for Independent Expenditures or “Super PACS”  to coordinate with political campaigns. However, at the very last minute, the governor tacked onto the Super PAC language a slew of poorly defined new rules that are ultimately intended to intimidate and discourage the funders for watchdog groups like Common Cause NY, Citizens Union and NYPIRG, all of which have affiliated non-profits registered with the IRS as both 501(c)3 and 501(c)4 non-profits.  (Reinvent Albany is a (c)3 group and has no related c(4).) The difference between the types of groups  is that contributions to c(3) groups are tax deductible, contributions to c(4) groups are not,  but those groups can engage in more political activity, including endorsing candidates.

In theory, the bill is intended to stop tax deductible contributions from going to political activity — which is already banned by the IRS and state charity rules, and has not been a real problem in New York.  In reality, this bill is an attempt to create a distraction from the governor and legislatures failure to pass meaningful reforms to stop the pay to play that has made Albany an ugly symbol of political corruption.

 

NY State’s Open NY Dips Toe Into Creative Commons Licensing

Reinvent Albany has worked hard to get NY State and NYC government to open up their data for public use. We think opening government data is one of the most promising new ways to open up government generally and increase accountability to the public. Open data is a new concept and the specifics of how to get government data online in a useful form can get very technical. That said, we think it is important to share the highs and lows of making open data work in the real world.

We are frequently quoted making critical comments about Governor Cuomo’s administration, and his penchant for secrecy and undermining and avoiding public oversight and transparency. That said, we have been impressed by the solid progress being made by Cuomo’s open data initiative “Open NY” which he created via executive order in 2013.

Earlier this summer, the Open NY team at NYS ITS released the Dataset Submission Guidelines, a thirty-three page manual for agencies publishing open data. While we have always appreciated the “quality over quantity” approach to data sets at New York State’s open data portal, one of our favorite parts of the Guidelines is the way it was published; the entire manual is published under a Creative Commons license. Creative Commons (CC) licenses are a set of standardized copyright licenses, and New York State has selected one of the most permissive CC licenses to publish its Guidelines.

When it comes to licensing the data itself, New York didn’t opt for a CC license, but to write its own six-page license which is relatively permissive. The preamble to the terms sums it up:

Keep your re-uses lawful. So long as you are not doing anything malicious with NYS data, you may use it as you wish, subject to no other requirements.

New York’s open data license doesn’t require attribution or share-alike licensing, or prohibit commercial uses of open data. In that regard, this is not a restrictive license for using open data. However, after that broad policy statement, there are another five pages of restrictions and legalese. There are disclaimers for the open data portal crashing as a result of an act of war in New York, prohibitions on uploading computer viruses to the portal, warnings that public feedback about the portal are not guaranteed to be adopted, and agreements that users of the state’s open data indemnify New York against legal claims arising out of use of the data.

While none of these provisions contradict the general “So long as you are not doing anything malicious” preamble, the fact remains that there are a lot of terms and conditions for New York’s open data. This makes it all the more remarkable that the Open Data Guidebook is released under a Creative Commons license which only requires attribution.

Going forward, we hope to see more public data released to New Yorkers under the clear, simple, and straightforward Creative Commons licenses, not just the Guidelines.

Governor Cuomo Needs to Respect Comptroller’s Oversight Role

Every state in the U.S. — including New York — has an elected comptroller with a large professional staff of auditors and accountants. The Comptrollers job is to make sure that the governor and state agencies are spending tax dollars according to what the budget says, and that those funds are not stolen or wasted. Comptrollers are also supposed to make sure that state contracts are awarded using a fair and competitive process. Basically, the comptroller is elected to keep an eye on how public funds are spent. Unfortunately, Governor Cuomo has adopted a deliberate strategy of undermining the Comptroller’s power and making personal attacks on the Comptroller for doing his job. This article in Gotham Gazette does a good job highlighting our concerns.

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Gov. Andrew Cuomo’s recent assertion that Comptroller Tom DiNapoli should “educate himself” and that the comptroller’s audits on state economic development projects are “dead wrong” and “opinion” drew a lot of attention. Many Albany observers took it as a sign of Cuomo’s growing sensitivity to criticism about his signature projects.

Those projects, like the Buffalo Billion, are the subject of a federal investigation headed by U.S. Attorney Preet Bharara. The state Legislature remained fairly removed from oversight of the projects until very recently. However, several government watchdogs say that Cuomo’s attacks on DiNapoli are part of a long-running pattern of Cuomo trying to weaken the comptroller’s oversight of the executive branch.

“The governor hates oversight and the governor actively works to undermine and weaken anyone who is keeping an eye on him,” said John Kaehny of Reinvent Albany, a group that has closely followed the Buffalo Billion economic development project. Kaehny noted that Cuomo and the Legislature approved a measure in 2011 that prevented DiNapoli from reviewing contracts at SUNY and CUNY ahead of time. “The governor has been undermining the comptroller from his first budget,” said Kaehny of Cuomo, who took office in January 2011.

Continued

 

 

“We have fundamental concerns about the cost effectiveness, transparency, and integrity of state subsidies to businesses.”