Proposal would lock down ‘confidential’ material
The Putnam County Legislature on Tuesday, July 2, will consider a proposed law that would allow any county employee or consultant to stamp “confidential” on a document to keep it secret. It also would permit prosecution of any employee who revealed the contents of a “confidential” document.
The resolution was approved by the Legislature’s Rules Committee on June 20 and sent to the full Legislature.
“The purpose of all of this is to tighten up the rules around our confidential information so that it cannot [and] should not be disclosed to anybody outside what this [resolution] says, which is other county departments [and] other agencies,” explained Legislator Neal Sullivan (R-Mahopac), chairman of the county’s three-member Rules Committee.
“We get a lot of correspondence from departments that is stamped ‘confidential’ and want to be clear about ramifications of ever disclosing confidential information to parties that are not purview to that information,” he said.
If passed, the proposed resolution would amend the county ethics code so that “any record designated ‘confidential’ by any Putnam County officer or employee, or by outside legal counsel or consultant to any agency or the Legislature of Putnam County, who is the creator or sender of such record” would automatically be deemed a secret unless the county attorney later released it, a judge ordered it released on appeal or the nine-member Legislature voted for it to be released — but only if the vote were unanimous.
When asked what policies guide county employees, legislators, contractors and consultants in deciding what material should be kept from the public, County Attorney Jennifer Bumgarner noted the Law Department did not draft the resolution and directed questions to Putnam Legislative Counsel Robert Firriolo. He forwarded the inquiry to Joseph Castellano (R-Mahopac), who chairs the Legislature.
In a letter to The Current dated June 28, Castellano said that county employees, contractors and consultants are guided by “law, rule, policy, procedure or by exercise of sound judgment” when deciding which material should be kept secret.
The proposed resolution cites nine exemptions to public disclosure listed in the state’s Freedom of Information Law (FOIL), but each is open to interpretation, such as withholding material that would “constitute an unwarranted invasion of personal privacy.”
After being sent a copy of the proposed Putnam law by The Current on June 21, Robert Freeman, then-executive director of the state’s Open Government Committee, which issues advisory rulings on FOIL and the Open Meetings Act, called it “ridiculous.” (After 40 years with the committee, Freeman was fired on June 24 after being accused of sexual harassment.)
Why We Have FOIL
The state Freedom of Information Law, which became effective in 1978, includes this declaration of legislative intent:
“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 government in accordance with the provisions of this article.”
Under the law, documents marked “confidential” could only be shared with local, state and federal agencies with the approval of the county attorney. The law also would automatically make confidential any record created by or any communication to and from the county Law Department, the Legislature’s counsel or outside counsel.
The resolution appears to conflict with years-old rulings by the state’s highest court, the Court of Appeals, that prohibit local entities from passing laws that make entire swaths of documents secret by default, Freeman said. Only state and federal statutes can do that.
He cited an opinion he wrote 14 years ago after Monroe County officials requested guidance on which materials they could keep confidential. Freeman wrote then, citing multiple Court of Appeals decisions, that “a local enactment, such as a county code, local law, charter or ordinance … cannot confer, require or promise confidentiality” and so, if passed, would be “all but meaningless.”
The Freedom of Information Law, which journalists and residents rely on to understand decisions by public officials and how taxpayer money is spent, presumes every government document is public unless a legislature or agency can provide what the Court of Appeals has called “particularized and specific justification” to keep it secret using the exceptions outlined in the FOIL.
Freeman noted that the FOIL “generally indicates that an agency may deny access to records or portions of records; it doesn’t indicate that an agency must withhold.”
Firriolo asserted on June 20 during the Rules Committee meeting that the law would have no effect on FOIL “because it does not alter the obligations of the county to comply with FOIL and it does not alter the decision-making process.”
The county attorney will still process requests, he said, and “there will still be court appeals if the person who requests [the information] is not happy with the decision of the county. There is nothing in here that affects the public’s ability to receive records that it’s entitled to. It’s strictly putting county employees and officials on notice that they have an obligation to safeguard public material.”
What Can Be Withheld
The state Freedom of Information Law allows governments to exempt certain materials from disclosure, including those protected by state or federal statute; that would “constitute an unwarranted invasion of personal privacy”; impair contract awards or collective bargaining negotiations; reveal trade secrets; interfere with law enforcement investigations or judicial proceedings; or endanger anyone’s life or safety.
The provision often cited by Putnam County when denying FOIL requests by The Current is that the records are “inter-agency or intra-agency materials,” which the FOIL allows to be withheld except in cases where they are statistical or factual data, final agency policy or determinations, external audits or other types of data.
After the Legislature on April 2 passed a contentious resolution calling on New York State to repeal the Reproductive Health Act that opponents said contained inaccuracies and incorrectly cited scientific research, The Current submitted a FOIL request for any emails exchanged by legislators that contained the words “infanticide,” “RHA” or “abortion” to see if more could be learned about how the resolution was drafted.
The county initially denied the request, saying that the emails constituted secret “intra-agency materials,” but on June 21 released two redacted emails that it determined on appeal did not contain “opinion or discussion.”
The Current also requested through the FOIL an 11-page memo written by the county’s legislative counsel, Robert Firriolo, to legislators in response to a public critique of the resolution by Legislator Nancy Montgomery, who represents Philipstown. That was denied initially and on appeal because the county claimed it would violate attorney-client privilege.
The next step would be for the newspaper to make its arguments for disclosure in court.
While records deemed to be secret could be obtained through the FOIL, the wording of the proposed law states that anything marked “confidential” is “typically exempt from disclosure.”
Firriolo said any county employee who intentionally violated the law would be referred to the Ethics Board, which could refer the matter to the district attorney.
Legislator Ginny Nacerino (R-Patterson) said the change was needed.
“We should have respect for the privileged information we receive and not violate that by distributing that information to outside sources when it is for our-eyes-only or for our-ears-only,” she said.
Legislator Nancy Montgomery (D-Philipstown) objected that the resolution was on the agenda for a vote to send to the full Legislature, rather than for discussion. “That’s just common courtesy for the public,” she said.
Legislator Paul Jonke (R-Southeast) disagreed.
“I don’t see the debate here,” he said. “We have a responsibility to protect the information we’re given.”
Holly Crocco contributed reporting.
Thanks very much for an informative article about the Putnam County Star Chamber, a.k.a. the Legislature. The county big wigs are already the worst when it comes to compliance with FOIL and it’s like pulling teeth to get even public information from them. Now they will have the excuse they need to clamp down even further on the public’s right to know.
As far as Robert Freeman: I have known Mr. Freeman for many, many years and have interacted with him regarding numerous cases of FOIL abuse by local government agencies, including Putnam County. I was shocked to hear the allegations (and that’s exactly what they are at this point) and find it hard to believe that he would engage in the kind of behavior that is being claimed in the media. Call me a cynic, call me a conspiracy theorist, but at this point in time I’m just not buying it.
Robert Freeman is/was one of the most dangerous men of our time and was relentless in his pursuit of open government and freedom of information. I’m sure there were more than a few politicians whose cage he rattled. Whatever indiscretions he may have engaged in, if any, they are far outweighed by his good works on behalf of the people of New York.
The proposed Putnam County legislation appears to violate both (1) the whistleblower protection laws of New York enacted to protect government employees who report violations of law by their employers, and (2) the New York False Claims Act (and the federal False Claims Act), which provide that it is lawful to disclose information, including confidential information, to a government investigative agency or to private counsel employed to investigate a fraud against the government by a contractor or other entity.
Under the New York False Claims Act (or the federal False Claims Act, if federal funds are involved), a government employee may disclose confidential information for the purpose of furthering efforts to stop fraud against the government.
Generally attorney-client privileged information should not be disclosed (unless it falls within the crime-fraud exception to the attorney-client privilege — such as where the attorney is assisting the client in committing a crime or fraud).
But other information marked “confidential,” or considered confidential by a governmental entity like Putnam County (such as inter-agency and other intra-government information, including information that might otherwise be protected by the deliberative process privilege), may be disclosed in the interest of fighting fraud.
Wendel, who lives in Nelsonville, is a lawyer in private practice who specializes in representing whistleblowers. She is the former chief of the civil frauds division of the U.S. Attorney’s Office for the Southern District of New York.
This proposed law is a shocking attempt by the County Legislature to allow ANY county Employee to potentially make SECRET virtually ANY document, ANY piece of correspondence, and ANY piece of information he or she chooses.
This is NOT what democracy looks like.
I urge the public to write their county legislators TODAY (the vote is tomorrow) at [email protected] (all use this one email address).
Kudos to The Current for publishing this excellent article. As of today, I don’t see anyone else covering it. I like Mr. Montuori’s idea of writing to the Legislators but can tell you from my own personal experience, that they totally ignore any and all email correspondence.
In fact, it is very difficult, if not impossible, to get a response to almost any communication with our “public servants” who represent us in Carmel and that includes Mr. Gouldman and Ms. Montgomery who represent Putnam Valley and Philipstown.
If anyone can make it to the meeting tomorrow, maybe we could at least get our voices heard and on the record. My prediction is that if this disgusting excuse for a “law” gets voted in, it will be challenged eventually in court and they (the Legislators) will lose. Maybe then they will pay attention.
Please flood the legislature with these an other comments before midday Tuesday. They will be taking it up at the 7/2 meeting — conveniently when the public is distracted by the Independence Day holiday. Write to [email protected]
This article exemplifies why local press must be preserved. I’m making a contribution today.
First off, the words “confidential” and “secret” have distinctly different meanings. Just because something may be confidential does not ipso facto make it a secret. Confusion here and apparently at the legislature (assuming the reporting is accurate) develops over the conflation of these two terms.
That said, any government bearing secrets, and claiming a right and a responsibility for defending, protecting and securing them, whatever these secrets may be, is not a government at all. At least it is not a representative government of the people, or even one for those who may vote or elect. Such an entity is rather more a cabal, a junta, an oligarchy, a plutocracy, a dictatorship, a private corporation, or similar.
Protecting whistleblowers and preventing “fraud” is the least of our concerns. All governments by their very nature are frauds — read on.
What is somewhat odd about this story, not that it is in any way false or untrue or misleading (how could I know, at this point?), is that it is merely a local story, a local manifestation of a general (in this case, ubiquitous) problem: governments and their controllers and operators claim to represent or at least involve the people (the governed) in their decision-making when the opposite is true. All governments represent the interests of a small group of well connected and well organized individuals, and secrecy — inside and outside of governments – is the method without which they cannot function as they desire.
Robert Michels detailed most of this 100 ago. See also the recent, critical but almost unreported work by Professors Gillens and Page, of Princeton and Northwestern Universities, respectively. Lastly but not least, I restate to reiterate that the word democracy as it is used today is a misnomer.
The Putnam County Legislature never ceases to amaze. In times like these, when the need for an informed public is more important than ever, it unilaterally decides to restrict access to public documents.
The proposed law is absurd and proves without a doubt the necessity for new leadership in Putnam County. For Firriolo to state that access to information should be obtained through the courts system tells you enough about his motivations. In classic form, Legislator Nacerino makes a statement that is anathema to open government. To assert that Putnam County knows better than the highest court in New York State puts the Legislators who vote for this in the rare position of being the smartest people in the room.
Thankfully Philipstown’s representative, Nancy Montgomery, is there to challenge the lack of opportunity for the public to give input. This is apparently in direct conflict with Legislator Jonke, who feels the public has no right to question this ridiculous attempt hide public documents from the residents of Putnam County.
This law is another waste of time that will ultimately be struck down. Unfortunately this will cost the taxpayers money and further humiliate our County. What is it that the Legislators are so desperate to hide from the public? The County attorney should get ready to defend the indefensible.
Shea is the Philipstown supervisor.
As with Facebook or other social media, anyone who works for “the government” and whose salary is paid by the taxpayers should have no real expectation of privacy. The Freedom of Information Law rightfully assumes that ALL public records are just that — public.
This law is an abomination. I heard that Nancy Montgomery was the only one who voted against it. Bravo!
God help the U.S. if such a rule were to be upheld. Whistleblowers could not whistle without violating the law. There are legitimate times to restrict circulation and the press knows this, but certainly not on the whim of every county bureaucrat, much less contractor, it being in the nature of such to stamp as confidential every document that passes their desks to avoid unknown problems.
Their attitude is understandable but wrong. It stands in contradiction of the law and tradition of the U.S. to encourage transparency in government. As U.S. Supreme Court Justice Potter Stewart wrote in regard to the publication of the Pentagon Papers, which President Nixon had attempted to restrict:
“In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry — in an informed and critical public opinion which alone can here protect the values of democratic government.”
Stewart was writing about Defense Department papers. But if they are not protected from intrusion by the public and press, why should the more mundane musings of bureaucrats and contractors be kept secret by the persons involved without any oversight? Rather, they should be careful of what they write. As President Woodrow Wilson urged regarding treaties, they should be “open covenants openly arrived at.”
This is one of the best, most informative articles ever published by the Current. I hope this is noticed when award time comes around. Really excellent journalism that is very much appreciated.