Editorial: Vague wording in FOIL limits access to records

What’s the outcome? A standoff
Public documents related to the Jay Street fire have been taken out of circulation as part of the criminal investigation.
Public documents related to the Jay Street fire have been taken out of circulation as part of the criminal investigation.

Once a public document, always a public document, right?

That’s the way it should be, anyway.

But it’s not the case when the police and district attorneys want to investigate a matter that involves those documents.

Then — because of some ambiguous language in the state’s Freedom of Information Law (FOIL) — they can snatch public documents out of the public domain and keep them secret while they conduct their investigations.

Once again, that vague language is preventing the public from learning more about the fatal March 2015 fire on Jay Street in Schenectady.

Last week, the city of Schenectady denied a Freedom of Information Law request from The Gazette seeking email exchanges between former city Building Inspector Eric Shilling and Mayor Gary McCarthy and other city officials.

The paper requested the emails following the death of Shilling, who was the building inspector in charge of those buildings at the time of the fire. We wanted to see, through our FOIL request, whether the emails exchanged showed any potential shortcomings in the city’s inspection and whether any other city officials were involved in decisions that might have contributed to the fire.

Many of those email exchanges, under normal circumstances, would likely be available to the public.

But our request for the emails was denied because the Schenectady County District Attorney’s Office had subpoenaed the emails as part of its nearly two-year investigation into the fire.

The city used the same justification to deny our earlier requests for code enforcement documents related to the buildings involved in the fire — documents that once were available to the public — and for the denial of other email exchanges related to the fire.

FOIL does allow public officials to keep emails secret if they are inter-agency or intra-agency materials that are not “statistical or factual tabulations or data; instructions to staff that affect the public; final agency policy or determinations; or external audits.”

So certainly, some of the emails we requested could legitimately be kept from the public. But that’s not the reason we were given for the latest denial of access to the emails.

The law states that documents can be exempted from public disclosure if they are “compiled for law enforcement purposes and which, if disclosed, would interfere with law enforcement investigations or judicial proceedings; deprive a person of a right to a fair trial or impartial adjudication; identify a confidential source or disclose confidential information relating to a criminal investigation; or reveal criminal investigative techniques or procedures, except routine techniques and procedures.”

They key word here is “compiled.”

Law enforcement officials have over time learned to define “compiled” as “collected” or “gathered.”

By that definition, any document, public or otherwise, used in any criminal investigation for any undetermined amount of time, could be taken out of the citizens’ view and withheld from their examination.

During an investigation, which can last years, the public has no chance to examine the documents, no opportunity to assess their meaning, and no opportunity to draw their own conclusions based on their review of the documents.

Robert Freeman, head of the state Committee on Open Government and the state’s foremost expert on the law, has interpreted the language to mean that police could withhold documents they themselves created for the investigation — such as detective interviews with witnesses or suspects and any information they derived during their investigation.

But documents that were created independently and prior to the criminal investigation, he has said, should remain in the public domain.

“If there wasn’t a fire, they would have disclosed those documents,” Freeman said after we were denied the code documents in 2015. “They were prepared in the ordinary course of business, not for law enforcement purposes. They were public before and they should be public now. Its contents have not changed.”

So you have two completely different interpretations of the law.

This isn’t just exclusive to the Jay Street fire. It happens almost every time there’s some kind of public document that suddenly is needed for a criminal investigation.

So what’s the outcome? A standoff. The government denies access to public records as long as they’re being used in an investigation. And the public remains in the dark about information that, by right, should be available for them to inspect.

District attorneys could decide to follow Freeman’s expert interpretation of the law and allow public documents to remain public unless they were created as part of the investigation. But that’s unlikely to happen, as long as they can use the existing language to skirt the intent of the law and keep public documents secret.

It’s clear the only solution is to amend the Freedom of Information Law to clarify the language.

The term “compiled for law enforcement purposes” needs to be changed to “created exclusively for law enforcement purposes,” or something similar that would make it clear the true intent of the passage.

That would allow privileged information about a police investigation to remain secret so police and prosecutors could conduct their investigation in private, while allowing the citizens to view other public documents that might shed light on a particular matter.

Our local state lawmakers should be helping the public gain access to this information by supporting legislation to amend and clarify the law.

The public has a right to view code enforcement documents. It has a right to view email exchanges that contain statistical, factual and policy-related information.

It should never have that right taken away for any reason.

Categories: Editorial, Opinion

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