I wrote to both the chair of the Saratoga Springs Democratic Party Committee, Pat Tuz, along with Mayor Kim, and the chair of the city Republican Party, Mike Brandi, and invited them all to address the issue of the alleged misuse of emails collected by the Saratoga Springs Recreation Department. The controversy was initiated by Mayor Kim, who sought and received extensive coverage from area media.
Brandi agreed, but Ms. Tuz told me that she would not participate. I did not receive a response from Mayor Kim.
Mr. Brandi’s piece is quite long and includes rigorous documentation that Mayor Kim’s allegations of improprieties are based on a fundamental misunderstanding of the New York State Freedom of Information Law.
Here is the reply I received from Mr. Brandi:
“It’s been very difficult to get information out,” Kim said. “This isn’t the city’s information, it’s the taxpayers’ information. They are paying our salaries. We have to do what is right.”
– Ron Kim, Times Union, December 27, 2021
On that, Mayor Kim, we agree. In no uncertain terms, Ron Kim ran on a platform promising transparency. Admittedly, he talked a good game. He spoke about ending needless expenditures on litigation fighting FOIL requests and honoring the spirit of the freedom of information law. These are laudable aspirations. However, after five months in office, it is becoming abundantly clear that Mr. Kim’s platform of transparency was nothing more than a house of cards built on a shaky table. In a particularly egregious “flip-flop,” Mr. Kim has presided over one of the most secretive administrations in memory. The administration is rife with whispers and intrigue about secret meetings, deliberate avoidance of written communication, and, significant here, the complete disregard of the dictates of FOIL.
As an attorney who has represented municipalities, served as a FOIL appeals officer and litigated FOIL on behalf of municipalities, I am well versed on the ins and outs of FOIL. While Mayor Kim has publicly disparaged my position as “armchair legal analysis,” he gives modern application to Socrates’s observation that “when the debate is lost, slander becomes the tool of the loser.” Rather, my contentions are backed up by case law and the opinions of the Committee on Open Government. Call me an idealist, but I am a true believer in government transparency and believe it to be a cornerstone of democracy and a critical component of effective local government and citizen engagement, regardless of the party in control.
What is FOIL?
The Freedom of Information Law was enacted in the 1970’s with the goal of giving citizens access to the records of their government. In declaring FOIL’s purpose, the legislature did not mince words,
“The people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality. The legislature, therefore, declares that government is the public’s business and that the public, individually and collectively and represented by a free press, should have access to the records of the government in accordance with the provisions of this article.”
There are three broad categories of information held by a municipality. First, there are those records that are confidential by statute and may not be disclosed. This includes things like 911-call recordings. Second, there is a category of information that fits certain categories created by FOIL. Records fitting these categories may be withheld by the municipality, but the municipality can release them. These include records like deliberative documents and some internal communications or internal attorney-client records. Finally, by far the largest category of records are those which must be disclosed as they are not confidential and do not fit any of the exceptions created by FOIL.
In sum, FOIL is permissive. What this means is that a municipality could, if it chose to, release everything in the second and third categories above immediately upon request. FOIL creates a bare minimum of transparency. Unfortunately, all too often, FOIL is used as a shield to obfuscate and delay requests by the public. For example, in multiple FOIL requests to the City of Saratoga Springs, the City regularly takes the statutory maximum of 5 business days to provide an acknowledgment. From the date of the acknowledgment, the City often exceeds the 20 business days required to provide a response. There is no remedy for a requester in these circumstances except to grin and bear it.
Despite FOIL being on the books for almost 50 years, New York State regularly finds itself in the bottom half of the nation in transparency rankings. Chalk this up to negligent or malicious politicians who are more concerned about their self-image and preservation than true transparency and good government. For its part, NYS occasionally tries to bolster FOIL with amendments. Recently, the legislature amended FOIL to allow a requester to recover their attorneys’ fees if a court determines that a municipality’s denial of their request was unreasonable. Of course, this remedy is entirely based on judicial discretion and only comes about after the requester has gone through the request and appeal process and invested some thousands of dollars on an attorney to file and pursue the matter in court. There is hope that as municipalities see taxpayer funds on the line, they will shape up, but commencing litigation is a high bar for a citizen and too sporadic for municipalities to take real notice.
FOIL and Saratoga Springs
Ron Kim’s administration is a prime example of the hurdles that the citizens of the State of New York face in striving for a more open government. The impetus for undertaking this article was Mr. Kim’s recent press release and subsequent commentary in which he sought to blame a “leak” of an email list on his predecessors. Mr. Kim immediately sought to frame this issue as one of a “data breach,” attempting to borrow some of the social outrage that faces corporations when private information is stolen by nefarious actors. Mr. Kim definitively stated that the information allegedly released was not subject to FOIL, and that its release was potentially criminal. On May 25, 2022, Mayor Kim doubled down in a Facebook comment in which he stated the following to a local blogger:
“You are wrong about the email list being FOILable and thus public without any protection of privacy:
1). There was no pending FOIL on 10/21/20 when this list was effectively ordered by politcal (sic) superiors to be released to their custody and control. No FOIL, no release, emails still private. So this is the Reddest of Red Herrings.
2) The specific case that is being relied upon as the basis to state that the emails are public information is predicated on the concept that the person who has the information is a “Public Officer.” The Mayor is a Public Officer, City Council Members are Public Officers. The Recreation Staff is not, so keeping this list secured with the Recreation Staff, meant it was protected from FOIL….until of course former elected officials required that it be turned over.
3) If you speak to the NYS Open Government Committee staff (sic) (who oversee FOIL) they will tell you that the idea of holding that an email address of a private citizen is FOILable is to ensure that the public knows who is contacting their elected representatives in the regular course of government business. So if you write an email to your City Council member, you should expect that email and your address to be FOILABLE. It is not to invade the privacy of several thousands of people who want to stay informed about recreational opportunities in Saratoga Springs. So if you signed up for soccer for your kids, you should not expect that your email address is susceptible to a FOIL request.
4. BTW if the logic that any email address given to a government entity is FOILABLE, why aren’t these large telemarketers simply sending FOIL requests to every government agency that exists?”
Subsequently, Mr. Kim addressed the issue at the May 24 City Council meeting, deriding my “armchair legal analysis” and reiterating in substance his arguments above (as an aside, I do my legal analysis from an ergonomic office chair from Branch furniture. I highly recommend it).
Breaking Down Mr. Kim’s Misunderstanding of FOIL
As noted above FOIL is permissive. A municipality does not legally need a FOIL request in order to release information that is not confidential. Mr. Kim’s assertion that records are private until a FOIL request is made is incorrect. For instance, municipal records are regularly posted online without a FOIL request. Municipal officials also respond to inquiries by constituents and provide certain records and information. FOIL is a tool that is used by the public to request certain information, but it is not the sole means of dissemination of information from the government. Mr. Kim’s position here is unsupported by logic or the law.
Mr. Kim next argues that FOIL only applies to “public officers”as if the City only has the obligation to disclose information when it comes into the hands of an elected official. He seems to believe that as long as the information remains with city employees(as opposed to officers), it is shielded from the public. I have to admit I am having trouble finding any basis for Mr. Kim’s position here, but his argument appears to be based on the fact that FOIL appears in Chapter 47 of the Consolidated Laws of New York, which is entitled “Public Officers.” I do not want to disparage Mr. Kim’s lawyering abilities as he has mine, but if this is the case, it is truly an amateurish understanding of how the law works — as if the title “public officers” limits the application of the eight articles and hundreds of pages of legislation that exists in that chapter. The Committee on Open Government was asked by the Foothills Business Daily to opine on Mr. Kim’s position and the COOG was clear that “[i]t’s not relevant which employee maintains the records” and that “The City is subject to FOIL requests.” Again, Mr. Kim was wrong.
Third, Mr. Kim argues that the COOG has told him that email lists are not subject to FOIL and that the intent of FOIL is not to allow the disclosure of lists of people. Basic research on this point proved Mr. Kim wrong. The COOG publishes its advisory opinions. Under the topic of “email addresses,” the COOG addressed the disclosure of email lists by municipalities five times. In each and every instance, the COOG held that the list must be disclosed. For example, in FOIL AO 17129 the committee held “Should an agency deny access to a list of email addresses collected for purposes of distributing information, in our opinion it is likely that, without more, an agency could not meet the burden of proving that disclosure would cause an unwarranted invasion of personal privacy.”
Indeed, the text of FOIL itself acknowledges that lists are subject to release as long as the list is not “used for solicitation or fund-raising purposes.” To this end, FOIL allows municipalities to request a certification from the requester that a list will not be used for fundraising or solicitation purposes. The use of the certification answers Mr. Kim’s 4th question above regarding why telemarketers don’t simply FOIL email lists for marketing purposes. Simple answer, they cannot, With the certification made, lists must be released. In FOIL AO 16609 the COOG held
“If a list of names and addresses would not be used for a commercial or fund-raising purpose, the recipient may do with the list as he/she sees fit. There are numerous instances in which lists of names and addresses are given, shared, and used by persons other than the initial recipient of the lists, i.e., to express positions relating to an election, to build support for or against a community project, or development, to attempt to educate concerning particular matters, etc. In short, in those situations in which a list of names and addresses would not be used or distributed for commercial or fund-raising purposes, I do not believe that there can be valid restrictions on its use or dissemination.”
In sum, Mr. Kim is incorrect, and email lists are indeed subject to FOIL. Municipalities face a very high burden in opposing the release of email lists. Even if a specific email address may be redacted (for example, if the email belongs to a minor or a victim of a crime), the remainder of the document must be released (the COOG and New York State’s highest court are clear that blanket denials of access are “inimical to FOIL’s policy of open government”). For Mr. Kim to assert that an email list is not subject to FOIL demonstrates either a willful disregard of FOIL or negligence of his obligations as a public officer. I am not sure which situation is worse.
To demonstrate the point, I submitted a FOIL request for this list. The City has acknowledged my request and has some time to respond. Should they fail to respond, I will have the opportunity to appeal and, finally, may bring the issue to our local Supreme Court. If I am successful and the Court finds that the City improperly denied my request, the City will be responsible for paying my attorney fees and costs.
I have no interest in obtaining a list of thousands of emails. I have no use for that. Once it is provided, I will shred it. What I do have an interest in is ensuring that our local government understands and honors FOIL. That is a hill worth fighting on and a mantle I will gladly take up.