As Sunshine Week continues, questions about Cuomo administration's responsiveness (and what about my 2010 FOIL requests?)

It's Sunshine Week, a national initiative organized by press groups (and allies) to spotlight open government, but sunshine regarding New York State government--notably, Empire State Development ESD)--seems to be lacking.

I've been waiting 18 months for a response to a Freedom of Information Law (FOIL) request from ESD, as I'll describe further below.

And journalists from much larger organizations, and even lawmakers, have been stymied, according to a 3/10/12 Albany Times-Union article headlined Delay hurts public access: Cuomo administration offers a mixed record in release of information to New Yorkers.

Jimmy Vielkind reported:

He boasts of running an administration that is "the most transparent and accountable in history," but Gov. Andrew Cuomo's response record to Freedom of Information Law requests contains several blemishes.
It took six months for journalists from the Associated Press to see a complete list of questions Cuomo was asked in an online chat on his new "Citizen Connects" website. Eleven months passed before the appointment calendars of senior administration officials, showing whom they met with as the 2011 state budget was crafted, were turned over.
Another request for schedule records, from Cuomo's tenure as attorney general, was only partially fulfilled and then closed, without notice, before the downstate Democrat assumed the governorship. The requested records were discarded.
It's not just journalists who have been kept waiting: Assemblyman Kevin Cahill, a Kingston Democrat who chairs the chamber's Energy Committee, waited more than four months for information from state agencies about a proposed power line.

Governor's response

Josh Vlasto, the governor's spokesman, said the executive chamber is up to date on all FOIL requests. And Robert Freeman, director of New York's Committee on Open Government, acknowledges that both more information is freely available, and tight staffing burdens agencies:

Freeman suggested people faced with silence should appeal their requests. Courts have the power to enforce the law, and even force the state to reimburse a requester for legal fees.

My pending requests: Development Agreement and EB-5 trip

I may have to appeal the seeming denial of two long-pending requests.

I get a version of the letter at right every month: it indicates that ESD "continues to conduct this review with its limited resources while simultaneously processing a large volume of FOIL requests, including several of broad scope."

What am I asking for?

Well, the 9/16/10 request, which might be considered fairly broad, sought several documents regarding the Atlantic Yards Development Agreement.

The 10/5/10 request, however, was more narrow, regarding Executive Director Peter Davidson's planned trip to China on behalf of the New York City Regional Center's effort, under the EB-5 visa program, to market an investment in Atlantic Yards that would bring Forest City Ratner a $249 million low-interest loan.

I sought records to explain:

• the cost and itinerary of the trip
• what Mr. Davidson is expected to do (outline of remarks, etc)
• the solicitation for and decision to make the trip
• any evaluation on ESDC's part of the job numbers used by NYCRC

As I later learned, and wrote 12/8/10, Davidson (left in photo) made at least one misleading speech, telling potential Chinese investors that Atlantic Yards "will be the largest job-creating project in New York City in the last 20 years.”

Davidson last November left for a post at the Port Authority.

Either ESD has the records or it doesn't. There's no reason to be sitting on them.

Continuity issues

Sure, these requests originated when the state agency was under the Paterson administration. But the Cuomo administration has essentially the same posture toward Atlantic Yards.

And it thus seems just as reluctant to release information that might cause some raised eyebrows.

Another Sunshine Week issue: where are the documents?

Freeman, director of New York's Committee on Open Government, wrote in a Rochester Democrat and Chronicle op-ed today that government agencies disserve the public by holding meetings to discuss documents that have not been made public:

Since the state’s Open Meetings Law went into effect in 1977, we have had countless complaints and comments from citizens who attend meetings of government bodies, people who want to be involved, but who cannot effectively understand or follow a discussion. When members of a government body have a document in their hands and refer to the second paragraph on page 3, but the document has never been disclosed, the discussion may not provide the ability to know what the members are considering, even though the public can be present. Sometimes there is no intent to shield information from the public, but it seems in too many instances that an intangible shield serves as a means of keeping the public in the dark.

A new provision, effective Feb. 2, focuses on two categories of records that are “scheduled to be the subject of discussion” during an open meeting. The first involves records that are available under FOIL, and the second pertains to records that may technically be withheld under that law, so-called “intra-agency materials” that consist of recommendations — proposed resolutions, laws, rules, regulations or policies. In both instances, government bodies are generally required by the amendment to make those records available in response to a FOIL request or on its website prior to the meeting during which they will be discussed. Very simply, the records that may be most important to residents, those that indicate what the government is planning to do, should be disclosed, within reasonable limitations, before meetings.

For example, in a December 2010 meeting of the Empire State Development Corporation to approve new Atlantic Yards documents, members of the public were invited to comment before the documents were made available for evaluation.