Gotham Gazette http://www.gothamgazette.com/component/tags/tag/1576 Sun, 22 Oct 2017 01:14:45 +0000 Joomla! - Open Source Content Management en-gb webmaster@gothamgazette.com (Webmaster) For Second Time, Legislature Sends FOIL Penalty Bill to Cuomo http://www.gothamgazette.com/?id=6982:for-second-time-legislature-sends-foil-penalty-bill-to-cuomo http://www.gothamgazette.com/?id=6982:for-second-time-legislature-sends-foil-penalty-bill-to-cuomo bill signing Cuomo

(photo: Philip Kamrass/Governor's Office)


A bill that would greatly strengthen New York’s Freedom of Information Law (FOIL), already vetoed once by Governor Andrew Cuomo, has again passed both houses of the Legislature -- with some minor adjustments.

The bipartisan legislation, which passed the Assembly in May and the Senate on Monday, mandates that city or state agencies be liable for court costs incurred by any individual who submits a FOIL request, is wrongfully denied documents, and then prevails in a lawsuit. Currently, the public officers law states that a court “may” award legal fees -- leaving the decision up to a judge -- rather than “shall,” a word change that would effectively penalize state agencies that willfully disregard disclosure law.

The governor’s office did not provide indication which way Cuomo is leaning this time.

The Freedom of Information Law allows everyday citizens, journalists, advocates, and others to seek and obtain information, like documents and communications, from government entities. The scope of the law is fairly wide, though there are significant exceptions, including for the deliberative process and much of what the state Legislature does.

Nearly identical legislation passed the Legislature in 2015, but Cuomo vetoed it, along with another FOIL-related bill, at the eleventh hour and with some harsh words. In his 2015 veto letter, Cuomo wrote that the bill “would allow attorneys’ fees to be assessed against a state agency, even if the state agency ultimately prevails.”

In the same letter, Cuomo, who regularly rails against the Legislature’s FOIL exemption, suggested that tightened FOIL requirements should also apply to the legislative branch. The governor is known for communicating himself in ways that are not FOIL-able -- for example, he is known not to use email.

Based on feedback from Cuomo’s office and recommendations from the Committee on Open Government, which helped craft the bill, the legislation has been amended to create a two-tier system. The first tier relates to situations where the complainant in the FOIL lawsuit was victorious because the agency failed to respond to a request or appeal, in which case the court would still have discretionary authority to award attorneys’ fees. The “second tier” mandates the award of attorney fees when a party denied access to records “has substantially prevailed” and the court finds that “the agency had no reasonable basis for denying access.”

“We think [the two-tier system] address the veto messages that we had prior and conversations we’ve had with the governor’s office,” said Assemblymember Amy Paulin, a Democrat from Scarsdale who authored the bill and sponsored it in the Assembly, in an interview with Gotham Gazette. “So we are very confident that it will be a law this year and it will give everyone the opportunity to to file a complaint when there’s been a violation.”

This legislation, which has the backing of the newspaper industry and has been the subject of numerous editorials, would have immense implications for news outlets, good government groups, think tanks, and other organizations focused on transparency.

Reinvent Albany and the New York Civil Liberties Union also worked closely with Paulin and Senator Patrick Gallivan, the Senate sponsor, to fine tune the language, and hailed the legislation as an important step.

“We think this bill is a very big deal and, if the governor signs this, it will be the most important transparency legislation to pass in quite awhile,” John Kaehny, executive director of ReInvent Albany, told Gotham Gazette.

Kaehny noted than many are dissuaded from bringing FOIL lawsuits, even when they are confident they were wrongfully denied, because they fear being stuck with the legal bill. “How many people or groups can afford to ‘win’ a FOIL lawsuit when winning gets them a government document and a bill for $10,000 or $50,000 in attorneys' fees?” he asked rhetorically.

Other states -- including California, Colorado, Florida, Illinois, and New Jersey -- already have such laws granting legal fee reimbursement to those who file FOIL requests and are wrongly denied.

A spokesperson for the governor’s office said the bill is “under review.”

Gallivan and Paulin said they were hopeful that Cuomo would sign this version of the bill. “If the governor cares about transparency, he should sign it,” said Gallivan.

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by Rachel Silberstein, State government reporter, Gotham Gazette
     

Read more by this writer.

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For Second Time, Legislature Sends FOIL Penalty Bill to Cuomo Thu, 08 Jun 2017 04:00:00 +0000
Push for a Better Mayor's Management Report Continues http://www.gothamgazette.com/?id=6270:push-for-a-better-mayors-management-report-continues http://www.gothamgazette.com/?id=6270:push-for-a-better-mayors-management-report-continues 311-cust-serv 


The City Council’s Committee on Governmental Operations held an oversight hearing on Wednesday to evaluate the structure and content of two annual city reports that measure everything from the wait times on 311 calls and the conditions of city parks to the number of unsheltered homeless people and traffic crashes in the city each year. These key performance indicators help the City Council and the public keep city agencies and offices accountable. Those agencies, in turn, rely on these reports to improve their policies and functioning.

The administration releases two detailed reports each year - the Preliminary Mayor’s Management Report (PMMR), two weeks after the January financial plan, and the Mayor’s Management Report (MMR), in September. The reports include evaluations of annual goals set by 41 city agencies and 3 non-mayoral agencies that report directly to the Mayor, and whether these agencies are succeeding or failing to meet their objectives.

Wednesday’s hearing, the third one held by the governmental operations committee on this issue, gave Council members an opportunity to delve into the process of how agency goals are included in the reports and to reiterate their request for adding more data to future reports. Council Member Ben Kallos, chair of the committee, highlighted some of the key concerns the Council has about a lack of clarity in certain agency goals, agency indicators with no set targets, and the need to directly link agency performance with corresponding budget allocations.

The PMMR and MMR are produced over six to eight weeks by the Mayor’s Office of Operations (MOO). About 10 MOO staff members work with more than 150 senior staff across the agencies, including deputy mayors and agency commissioners, and coordinate efforts with City Hall to release the final products, which detail agency goals and indicators of whether those goals are being met year after year.

There are 1649 metrics by which agency performance is tracked in the two reports. Examples include quality-of-life summonses issued by the New York Police Department, the number of people on the city’s cash assistance rolls, the average daily attendance in city schools, and the number of families entering the city’s homeless shelter system.

The report tracked the NYPD’s goal to reduce the number of quality-of-life violations, a critical indicator without a set target. The four-month numbers (the timeframe for the PMMR) fell from 142,434 in Fiscal 2015 to 125, 685 in Fiscal 2016.

Under the Department of Education’s performance, the report looked at average daily attendance in city schools, which surpassed the 91.7 percent target in Fiscal 2016 (93.2 percent) and Fiscal 2015 (93.5 percent). Similarly, the report showed that the Department of Homeless Services had been successful in reducing the number of adult families entering the shelter system from 521 families to 466.

The data, which is available on an interactive website, includes comparisons with previous years, five-year trends and a look at desired directions for performance. This year’s PMMR data was also available on the city’s Open Data Portal, providing public access to all the information collected under the report. Kallos, an ardent supporter of transparent and accessible information and technology, praised MOO for this effort.

“We really take care not to take a one-size-fits-all approach to targets and indicators in the PMMR and MMR,” said Mindy Tarlow, MOO director, at one point during Wednesday’s hearing. “We try to see each indicator and each agency as a complex diverse case that’s in some ways reflective of the complex diverse city that we’re monitoring and reporting on.”

City Council members took turns questioning Tarlow and her colleague Tina Chiu, deputy director for performance management. The members usually stuck with issues germane to issue committees they chair or sit on, but the larger concerns voiced at the hearing were about the lack of targets for many critical performance indicators and the ways in which targets are set and the reports are improved.

Council Member Ben Kallos, who chairs the government operations committee, commended MOO for changes they had made to the PMMR based on recommendations from a December 2015 hearing about how targets were defined in the reports. This year’s PMMR included a more nuanced description of targets, which can be numeric or directional. Numeric targets set expected performance levels including a maximum that should not be exceeded or a minimum level that should be met. Directional targets indicate whether an indicator should go up or down. Many indicators had no target at all, which gave cause for concern to Kallos and Dick Dadey, executive director of government reform group Citizens Union, who testified at the hearing.

When Kallos asked why certain indicators had no targets, citing the number of lawsuits brought against the city as an example, Tarlow clarified that many of these indicators are “neutral” statistics out of their control, such as certain population numbers, for which it’s impossible to set directional targets.

“Although the committee is pleased that some improvements have been made,” Kallos said in his opening statement, “our review of the most recent PMMR suggests that further changes could make both of these publications more helpful tools for the Council, the public, as well as  the agencies.”

The City Council, in its Monday response to the mayor’s preliminary budget for fiscal year 2017, identified 57 indicators across 18 agencies that they want included in the MMR going forward. Kallos brought this up at the hearing, specifically pointing to indicators for the Board of Standards and Appeals, which falls under the Department of Citywide Administrative Services, which is under Kallos’ committee’s oversight. He also mentioned a City Council data study that found 107 indicators (70 critical ones) where there was a 28 percent discrepancy over last year’s PMMR and average performance over the prior three years.

kallos rules hearingKallos (pictured*) also questioned Tarlow and Chiu about indicators relating to the Department of Health and Mental Hygiene, the 311 helpline system and the Department of Homeless Services, but his main concerns were about holding people accountable for changes to the PMMR and MMR, further clarifying how targets are defined, minimizing the number of indicators without targets, and linking performance indicators in the PMMR to the corresponding allocations in the preliminary budget, as the City Charter mandates for the PMMR.

“Who has ultimate responsibility for the changes that are being implemented?” Kallos asked Tarlow, frustrated that Council members’ requests for additional indicators in the past had been routinely agreed to by agencies but not followed through on. “Is it with the agency or Operations, and how do those changes actually end up happening?

Tarlow stressed that the creation and addition of indicators was a collaborative process with agencies. “We don’t dictate play to the agencies and the agencies don’t just unilaterally make changes,” she said, agreeing to consider improvements in communication with Council members. She also said that they had started to work with the Mayor’s Office of Management and Budget to cross-reference and link the PMMR with the preliminary budget.

Kallos’ concerns were echoed by Dadey, who reiterated recommendations that Citizens Union had made in the past, which shows, he said, “a challenge that we face that we’ve been back here several times making the same recommendations and while some of them get adopted we think that some of the more common sense ones are not being embraced and we’re at a loss to understand why.”

Dadey floated three specific proposals: setting targets for half the indicators in the report which had no metrics to judge them by (the number of indicators with no target increased from 948 to 961 this year from last); providing more budget detail alongside performance indicators; and expanded reporting on cross-agency initiatives to track transparency (for instance Freedom of Information Law requests) and voting registration programs at agencies.

He called the lack of targets for half the proposals “disconcerting” as “it indicates one of two troubling possibilities. Either the agency experienced difficulty in setting goals in coordination with the office of the mayor or that these goals have been established and are possibly being concealed from the public. Neither is satisfactory,” he said.

To the administration’s credit, MOO has made effort to add sections on multi-agency initiatives, such as IDNYC, which was eventually folded into the report on the Human Resources Administration. “That’s what we want,” Tarlow said in response to questions from Council Member Carlos Menchaca. “To really feature a multi-agency new initiative and then have it be so routine that it becomes baked into the fabric of what we do on a day-to-day basis.”

Menchaca wanted to know how the PMMR and MMR reports evolve and about efforts to make the report machine readable. His larger concern, as chair of the Council’s immigration committee, was that the data be accessible to New York’s immigrant communities. “What do you do to get the report out in other languages?,” he asked.

Tarlow’s answer was unimpressive. “I actually don’t know,” she said.

Lisa Neary, general counsel for the Independent Budget Office, also testified, although less about the content of the reports than the process. IBO had testified at the December 2015 hearing as well, recommending legislation that would require citizen surveys to be included in the reports. The idea has been championed for a long time by Baruch Professor Doug Muzzio and a relevant bill has been introduced by Council Member Corey Johnson, though it has not received a vote.

On Wednesday, Neary focused on the timing of the two reports. She said the PMMR being released early in the year was inadequate since it only accounts for the first four months of the financial year (July to October).

“With only this partial picture in hand,” Neary said, “the Council lacks crucial information that would allow you to link objectives to resources, and resources to outcomes.” She cited the current PMMR’s data on Department of Education programs, where at least a dozen critical indicators were listed as “not available.” She said the MMR’s release was “even more poorly timed,” and should be some time between January and June to have maximum influence on budget decisions.

When Kallos asked her for suggestions, she said perhaps the MMR should be released with the executive budget in May and then a full accounting of the year should come out in October or November. “The key thing is to have as much information as you can at the time that you’re making resource allocation decisions,” she said.

Council Member Mark Levine, chair of the parks committee, questioned Tarlow and Chiu about PMMR indicators on park maintenance and capital park projects, as well as on the lack of information on eviction prevention and legal services. Council Member Vincent Gentile, in keeping with his position as chair of the oversight and investigations committee, asked MOO to consider tracking the performance of individual Inspectors General under the Department of Investigation. Tarlow had ready answers for both Council members and promised to discuss their concerns with individual agencies.

***
by Samar Khurshid, City government reporter, Gotham Gazette
     

Read more by this writer.

*Photo of Ben Kallos by William Alatriste

Note: Gotham Gazette is an independent publication of Citizens Union Foundation, sister organization to Citizens Union.

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Push for a Better Mayor's Management Report Continues Thu, 07 Apr 2016 19:34:38 +0000
Mostly Questions and Criticism Ahead of Cuomo Email Summit http://www.gothamgazette.com/?id=5731:mostly-questions-and-criticism-ahead-of-cuomo-email-summit http://www.gothamgazette.com/?id=5731:mostly-questions-and-criticism-ahead-of-cuomo-email-summit Cuomo Indian Point

Gov. Cuomo (photo: Kevin P. Coughlin/Governor's Office)


On Friday - the Friday of Memorial Day weekend - Gov. Andrew Cuomo will host a summit on email retention policy. It is a much-anticipated meeting that a large number of key stakeholders don't see a need for, and it's unclear what attendance will look like in terms of representation from the major entities in state government being called together to agree on a uniform approach to keeping and deleting official emails.

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Mostly Questions and Criticism Ahead of Cuomo Email Summit Mon, 18 May 2015 23:23:22 +0000
Albany Sunshine Week Looked Like an Eclipse to Advocates http://www.gothamgazette.com/?id=5648:sunshine-week-in-albany-looked-like-an-eclipse-to-advocates http://www.gothamgazette.com/?id=5648:sunshine-week-in-albany-looked-like-an-eclipse-to-advocates Cuomo Heastie ethics

Cuomo and Heastie embrace over ethics deal (photo: Governor's Office via flickr)


The Cuomo administration and the state Legislature are doing battle on a variety of fronts, perhaps none more intense than that over ethics reform. Last week, the administration launched a two-pronged attack in response to criticism of its 90-day email deletion policy and over a push for increased financial disclosure by administration employees and their significant others.

The pushback came during Sunshine Week, when state government is supposed to be focused on transparency and accountability. And while there were several announcements related to efforts to let more sunshine into government, the week was dominated by bickering. Cuomo's office was often focused on deflecting attention back onto the Legislature with surprisingly ugly attacks, even by Albany standards, rather than promoting transparency.

"Instead of sunshine we have an eclipse," said Blair Horner of the New York Public Interest Research Group (NYPIRG). "This is a Sunshine Week where the major players aren't even acknowledging the week with major initiatives. Instead we are fighting about whether the governor should automatically delete email after 90 days and disclosure for girlfriends."

Past Sunshine Weeks have seen the announcement of major open-data portals and other transparency initiatives. To be sure, the governor is pushing his ethics reform package, and even announced a two-way deal with the state Assembly on measures to require lawmakers disclose their outside income, verify their presence in the capital to collect per diems, and more. But, controversy over the email purge and the limited nature of the ethics reform plans have often kept the governor and other legislators on the defensive.

Cuomo responded to criticism of his email policy and new bills to require longer retention of government emails by insisting the Legislature must agree to be subject to FOIL for him to consider making changes. When pushed by Attorney General Eric Schneiderman, Cuomo did declare that he is ready to revisit the policy and said he will be convening a summit around email retention.

In response to the push for more financial disclosure from his administration and, specifically, his wealthy live-in girlfriend Sandra Lee - who Capital New York reported has business with a company that has business before the State - Cuomo spokesperson Rich Azzopardi tweeted, "The administration is glad to negotiate disclosure of all girlfriends," in a thinly-veiled insinuation that legislators have extra-marital relationships.

"This is not anything that is personal," Republican Senate Majority Leader Dean Skelos told reporters of his push for Lee to disclose her income. He went on to declare interest in more disclosure from Cuomo's "minions," of which Azzopardi clearly qualifies. "You can find out where any of our council staff people went, how much they paid for lodging, their gas expenses, whatever they chit," Skelos said. "The governor, his staff, when they move their minions for a press conference, other than for security purposes, they don't have to disclose."

"It is getting really nasty," Horner said of the debate over increased disclosure from legislators and the administration. "It is sort of embarrassing."

Bills have been introduced that would do away with the executive's controversial policy that sees all state emails deleted after 90 days unless they are specifically saved. Advocates say the policy interferes with transparency and the freedom of information law, and state employees say it complicates their work.

A bill introduced by State Senator Liz Krueger and Assembly Member Daniel O'Donnell would both drastically reform the email retention policy and make the Legislature subject to FOIL. Attorney General Eric Schneiderman ended his office's 90-day email deletion policy and said it would be formulating a new one, provoking Cuomo to act.

On March 12 Cuomo called for a state government summit on email and transparency, but a date has not yet been set. "We believe the policy should honor transparency while maintaining efficiency," Cuomo's head spokesperson Melissa DeRosa said in a statement. "To that end, as the Attorney General and the legislature appear open to revising their policies, the governor's office will convene a meeting with representatives from the Legislature, the attorney general and the comptroller to come up with one uniform email retention and [Freedom of Information Law] policy that applies to all state officials and agencies."

With no sign of a conference in sight Krueger and O'Donnell issued a statement on the 18th calling on Cuomo to end his policy regardless of a conference. "We don't need to hold a summit before we halt the current indefensible email deletion policy," said O'Donnell. "An immediate suspension and then a summit as soon as possible will enable us to have the intelligent conversation we need regarding a unified state policy." Krueger noted that Schneiderman did not wait for a summit to end his policy.

John Kaehny of good government group Reinvent Albany said that it is "unfortunate" that Sunshine Week was dominated by the email deletion policy, and calls the policy a "big step backwards" that could be adjusted quickly, thereby ending the public outcry against it.

Last Tuesday, perhaps looking to break up a newscycle dominated by his email policy, Cuomo made an impromptu announcement of an ethics package that he had agreed to with Assembly Speaker Carl Heastie but not Skelos, who heads the Senate. The agreement would require tighter disclosure of legislators' outside income, take pensions away from officials convicted of corruption offenses, force lawmakers to check in with a swipe card to collect per diem reimbursements, and tighten rules pertaining to the personal use of campaign funds.

Skelos rejected the package for not holding the Executive to the same disclosure standards as the Legislature and good government groups criticized it for not going far enough, especially considering the indictment of Assembly Speaker Sheldon Silver.

The announcement also came on the heels of Schneiderman's unveiling of a drastic reform package that would create a full-time Legislature, among other sweeping reforms. Schneiderman explicitly stated that he was pushing the conversation further than the governor and that incremental steps at ethics reform would no longer suffice. His proposals are likely to go nowhere any time soon.

Sunshine Week did have its moments in the advancement of government transparency. Schneiderman's office announced that it will release an application programming interface, or API, that will allow app developers to use data from the Attorney General's NYopengovernment.com database. Kaehny and Schneiderman's office believe the API will make it easier for programmers to provide real-time data analysis of things like campaign finance, lobbying, and state contracts. "Giving the public direct access to this data will help shine a much-needed light on our state government," Schneiderman said in a statement.

The Senate passed a bill that would codify its practice of livecasting its proceedings and posting votes to the internet - the catch is that the Assembly would also have to pass the same bill. The Senate has passed the bill for years while the Assembly has refused to consider it.

The Assembly, meanwhile, passed a slew of one-house bills that work at strengthening response to freedom of information requests.

"This Sunshine Week was all about passing the buck," said Horner.

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by David King, Albany editor, Gotham Gazette
@DavidHowardKing

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Albany Sunshine Week Looked Like an Eclipse to Advocates Tue, 24 Mar 2015 02:46:58 +0000
Outside Experts, Inside Employees Agree: Cuomo's Email Purge Misguided http://www.gothamgazette.com/?id=5618:outside-experts-inside-employees-agree-cuomos-email-purge-misguided http://www.gothamgazette.com/?id=5618:outside-experts-inside-employees-agree-cuomos-email-purge-misguided Cuomo

Gov. Cuomo (photo: Governor's Office via flickr)


Governor Andrew Cuomo's new 90-day email deletion policy for all state agencies is being met with widespread disapproval. Experts say it is terrible for transparency; the people who have to abide by the mandate say they don't feel qualified to implement it and that it isn't good for their productivity.

According to a number of state workers who spoke to Gotham Gazette on the condition of anonymity, regular work habits have been disrupted by the policy that sees emails purged after three months. They say that the policy costs them time because to abide by it they are forced to weigh the State's monumentally large email retention policy against the purge policy, and then ferret out and save important emails.

There is also concern that losing emails will disrupt workflow because employees won't be able to refer back to previous conversations by searching their inboxes, as people often do.

The State began the program after consolidating a myriad of email systems into Microsoft Office 365. Capital New York reported the start of the program last week. The program actually gives the administrator the ability to purge employee emails after one day. A coalition of technology- and transparency-minded groups including Reinvent Albany and the NYCLU wrote the governor last month to oppose implementation of the program, arguing that it would cripple Freedom of Information Act laws (FOIL).

"This policy was adopted without public notice or comment," reads the letter. "Furthermore, we are extremely concerned that the inevitable destruction of email records under your 90-day automatic deletion policy directly undermines other public accountability laws like the False Claims Act."

Cuomo's IT chief Maggie Miller was grilled about the policy during a budget hearing last week. She defended the policy, saying in part, "It's also a matter of, actually, encouraging good behavior, prudent and responsible use of state resources." In terms of concern over space issues and expense, Microsoft Office 365 offers decades worth of email retention.

The Cuomo administration has billed the deletion program as a way to improve efficiency, but workers say it's a hinderance and that they don't feel qualified to decide which emails should be saved in case of lawsuits or FOIL requests. "This just isn't my job," said one employee.

State rules pertaining to what emails should be saved are extensive - they take up 118 pages and 215 separate categories.

State Sen. Liz Krueger, a Democrat from Manhattan, told Gotham Gazette that she learned of the policy during that budget hearing and was "horrified."

"How many state employees understand the language in the policy about what should be preserved?" Kruger asked. "I asked three FOIL lawyers how complicated it is and whether a layman could interpret the rules and they laughed."

Krueger has a bill in the works that would overturn the 90-day policy and establish retention timelines for different areas of government. The bill would add electronic communication to the state's archive laws. She says her legislation will be complicated because it covers so many areas, but takes some inspiration from the Federal Capstone Email Management Policy. It would also make all branches of government, including the Legislature, subject to FOIL. Krueger said she expects bill drafting to be complete in about a week.

There is concern among some legislators and advocates who want to stop Cuomo's policy that Krueger's bill is too far-reaching to actually pass. One legislator told Gotham Gazette with condition of anonymity that they felt making the Legislature subject to FOIL is actually a "poison pill," and virtually guarantees it will not pass.

Krueger said that her bill is not designed as an attack on Cuomo. "I hope this is a situation where the left hand doesn't know what the right hand is doing. Maybe the governor made a mistake. This isn't a spat. I'm not here to go 'Ha, ha! I caught you screwing up!' I am here to repair [the situation] because I care about the democratic process."

Although the uproar over the policy has been sudden and sharp it isn't exactly surprising that the Cuomo administration implemented it. The administration is known for being extremely secretive, and has been working on the implementation of the program for years.

Zephyr Teachout, Cuomo's primary opponent from last year and author of a book on political corruption, has slammed the policy and pointed out that Cuomo is under federal investigation for tampering with The Moreland Commission on Public Corruption.

"Everyone knows that Albany - all of it, executive and legislative - has a corruption problem. Some of it's legal, some of it's illegal," Teachout told Gotham Gazette. " At this particular moment, with such low trust in Albany, there's no excuse for an email deletion policy. He should be opening the books, not burning them after three months. Transparency isn't the full answer. X-rays don't cure patients. But you need them to figure out what's going on."

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by David King, Albany editor, Gotham Gazette
@DavidHowardKing

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Outside Experts, Inside Employees Agree: Cuomo's Email Purge Misguided Fri, 06 Mar 2015 00:45:01 +0000