Proposal would lock down ‘confidential’ material
By Chip Rowe
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.