The bill that Gov. Andrew Cuomo signed into law last week that allows plaintiffs who win Freedom of Information lawsuits to recover their legal expenses will do little to bring transparency to agencies determined to hide their secrets.
Nationally renowned investigative reporter Wayne Barrett taught me the importance of FOIL as a reporting tool on my very first day as his intern at the Village Voice, in February 1988, when he asked me to type up the first FOIL request of my career.
Thirty years and hundreds of FOIL requests later, I’ve learned that government agencies often abuse and violate the law to hide their secrets, but it wasn’t until my tenure as director of communications at the state Office of Children and Families that I witnessed how far an agency will go to prevent the release of information to which the public is legally entitled.
For 30 years, OCFS officials hid from public scrutiny the abuse of children in the juvenile jails it managed. This abuse only became widely known to the public in 2016, when two employees killed a 15-year-old by sitting on him until he stopped breathing.
Eddie Borges writes about the politics of poverty with a concentration in child poverty.
I joined the agency at the tail-end of 2007, nearly a year after Gov. Eliot Spitzer had named attorney Gladys Carrion commissioner to fix this broken juvenile justice system. In that time, they had not managed to close a single juvenile jail. Time was running out.
My recommendation to the commissioner and the governor’s office was transparency. If we opened up the agency to reporters, we’d build the political capital they needed to improve outcomes for children across the state.
I immediately implemented open government policies at OCFS. I invited reporters across the state to tour the juvenile jails where children were regularly abused — and ended OCFS’ longtime abuse of FOIL to block public access to agency records to which they were legally entitled.
I called my former colleagues in the Legislative Correspondents Association in the state capital and told them to withdraw any outstanding FOIL requests they had at OCFS. If they needed any records, they should simply call me.
While agencies take months to fulfill FOIL requests, I found that 90 percent of the requests from reporters for documents never took me more than 10 to 15 minutes to complete. This confirmed the suspicions many of us in journalism have that agencies regularly violate the law with impunity.
This strategy of bringing transparency to a state agency succeeded far beyond our expectations. We generated hundreds of newspaper stories and editorials. Within four months, we closed the first set of juvenile jails. Within three years, we closed half of them and implemented a new model for juvenile justice.
After the heavy lifting on juvenile justice had been done, I started to come across other secrets that the permanent government at OCFS preferred to keep buried and definitely didn’t want uncovered by FOIL requests.
There was the employee who spent $250,000 on printing for her friends without any approval whatsoever. When I shared the invoice with the agency’s executive deputy commissioner, he shrugged it off — this was an employee whose job he had been protecting.
Then there was the agency rubber room I accidentally stumbled into. This was where they assigned staff whom senior management determined weren’t useful, so they to sat in cubicles with little to nothing to do — at full salary — until retirement.
Then one day, Commissioner Carrion called me into her office, shut the door, and slipped me a folder. Its contents would prove to be the smoking gun illustrating how state bureaucrats who violate FOIL to protect themselves and their friends are likely to be covering criminal behavior.
This folder held the copy of a final judgment from the courts affirming her decision to fire an agency employee at a juvenile jail who forced a child into a chair, sat on his lap, then repeatedly punched him in the face while his supervisor looked on. This assault on a child took place at the Tryon Residential Center in Fulton County, where a 15-year-old boy was killed four years earlier.
The next Friday, we were in the ABC News studios on West 67th St. with “20/20” co-anchor Christopher Cuomo. He interviewed Carrion for nearly an hour about the challenges of firing a state employee even when they are caught on camera pummeling a child.
We immediately earned the wrath of the agency’s general counsel and her deputy. They were outraged that we had shared with a reporter a public court document. The counsel’s office had spent so many years covering for the abuse of children in agency care by personnel they could no longer understood the difference between right and wrong.
The curtain immediately came down on the age of transparency and open government at OCFS. Employees who misappropriated hundreds of thousands of dollars, those who worked in the rubber room, and those who abused children no longer had to worry that their misdeeds might be uncovered.
This is why New York state’s FOIL — and whistleblower and inspector general — laws must be strengthened, so that the state’s civil service can’t simply ignore them.
New York City has been in the middle of child abuse crisis for several years now. Yet, OCFS, the agency with a $4 billion annual budget to prevent child abuse and neglect, refuses to release public records that would shed light on its day-to-day actions to defuse this crisis.
For example, the agency has numerous advisory boards, but OCFS refuses to reveal who serves on those boards, when those boards meet, or to provide copies of meeting minutes.
OCFS also has been stalling on fulfilling a FOIL request for the calendars and travel expenses for the agency’s acting commissioner and several of her deputies for nearly six months — even after I informed them exactly where those files could be found on the third and second floor of the agency’s headquarters in Rensselaer.
These requests are the bread and water of journalism and democracy.
If Gov. Andrew Cuomo is serious about open government and New York being a “sanctuary” state, he needs to feed our democracy, not starve it.