Legislators claim it does not promote secrecy
By Liz Schevtchuk Armstrong
Putnam County Executive MaryEllen Odell on Tuesday (July 30) signed a law that allows legislators, county employees, consultants and contractors to write “confidential” on any document to prevent its disclosure.
Odell’s endorsement of the law, which the county Legislature approved on July 2 by a 7-1 vote, followed a July 24 public hearing that featured vigorous commentary both from opponents of the law and residents who backed it.
The law’s advocates argue that it codifies existing obligations to identify confidential material and does not conflict with state and federal laws, including provisions of the state Freedom of Information Law (FOIL). Critics contend that because those state and federal laws already prevent unwarranted disclosure of sensitive information such as details of undercover police investigations or medical records, the law is unnecessary and likely to be nullified if challenged in court.
Crafted as an amendment to the employee ethics chapter of the county code, the law will take effect after it is filed with the New York Secretary of State.
Along with signing the law on Tuesday, Odell sent the Legislature a memo that endorsed confidentiality in legislative discussions and criticized District 1 Legislator Nancy Montgomery, who voted against the law on July 2. Montgomery, the sole Democrat on the Legislature, represents Philipstown and part of Putnam Valley.
“It is abundantly clear,” Odell wrote, that the law is “vital to protect and preserve the deliberative process.”
In her memo, Odell said that “making government more accessible to the public is vital to improving the quality of democracy. However, that does not mean that the gate to all government records should be flung open for the public to simply peruse at leisure.”
She postulated that decision makers must “be able to trust in the confidentiality of their meetings and communications if there is to be a free flow of conversation.” Therefore, “to protect our lawmakers’ ability to discuss certain sensitive issues,” the new law recognizes “that the attorney-client privilege is an invaluable tool.”
Odell asserted that the “negative impact of a violation of the attorney-client privilege” became apparent “in the public hearing on this local law itself, when a legislator [Montgomery] disregarded the attorney-client privilege without consultation among the Legislature and disclosed attorney-client privileged information.” Thus, Odell wrote, “it is abundantly clear” that the law is “vital to protect and preserve the deliberative process.”
Odell added that, just as legislators can censure a fellow legislator, the county ethics board must be empowered “to recommend appropriate penalties” when violations occur.
At the public hearing on July 24, Montgomery said that on July 5 she had sent Odell and the county Highway Department a message about a business group’s inquiry on road signs. Eleven days later, she said, she received a response, labeled “confidential” in red ink, apparently drafted with a lawyer’s assistance.
As Montgomery began to read from the memo, some members of the audience booed and shouted to drown her out.
“Why is this marked ‘confidential?’ ” Montgomery asked. “Just because it’s from an attorney doesn’t mean it should be stamped ‘confidential.’ ”
Montgomery called the secrecy law overreaching and urged it be revised. As written, she said, “the intent of this law is to stop leaks and effectively place a gag order on county officials and employees.”
On Thursday (Aug. 1), Montgomery linked the “confidential” road signs response to a series of ongoing “retaliatory tactics” by county officials “to limit my ability to assist and respond” to residents and said the incident “shows how this law will hurt the public.”
The response “was marked ‘confidential’ without clear reason and prevented me from delivering public information vital to general business operations,” she said. “The law will directly impact my capacity to serve” and impair all legislators’ abilities to assist constituents. She added that Odell “signed a flawed law. This is not good government and the citizens of Putnam County deserve better.”
The law “does not allow any county employee to stamp ‘confidential’ on a record and turn it into a ‘secret,’ ” the legislators wrote. “In fact, the word secret doesn’t even appear anywhere in the law.”
The law states that communications by, to, or from the county Law Department, the Legislature’s attorney or a county “outside legal counsel or consultant shall be presumed to be confidential even if not explicitly labeled ‘confidential.’ ” While acknowledging that legislative records involving attorney-client privilege, “deliberative process privilege,” or work by lawyers might sometimes be disclosed, the law says that all nine legislators must agree to their release.
It further decrees that no one in county government can “disclose, distribute, transmit, forward, publicize, deliver, disseminate or describe” something deemed confidential — whether papers or a report, statement, memo, folder, pamphlet, book, draft, drawing, map, photo, letter, electronic-media message, disk, tape, regulation, code, opinion or similar item.
In her note to the Legislature, Odell recommended that it remove a paragraph from the law that allows any county employee, official, outside legal counsel or consultant to slap “confidential” on something he or she creates or transmits. Such material is already protected by state law, she said. Nonetheless, she signed the law with that provision intact.
The county notice announcing the July 24 public hearing stated it would “be held before the county executive,” but Odell did not attend. Instead, members of her staff recorded the meeting and County Attorney Jennifer Bumgarner introduced each session. Article 20 of the state’s Municipal Home Rule law says that after a county legislature passes a law, a public hearing must occur “before the chief executive officer.”
Asked on July 24 if the hearing was legitimate despite Odell’s absence, Bumgarner responded: “Her office is fully represented, which satisfies the terms of the law.”
During the hearing, the Legislature’s legal counselor, Robert Firriolo, read a statement from the eight Republican legislators, who defended the law. In it, they maintained that the law “does not create any new type of confidential record which may be withheld from the public” and “does not allow any county employee to stamp ‘confidential’ on a record and turn it into a ‘secret.’ In fact,” the statement said, “the word secret doesn’t even appear anywhere in the law.”
According to the statement, making a document “confidential” merely advises an employee to deal with it carefully.
The statement also noted that “numerous state and federal laws” require confidentiality and provided examples of information it said is kept confidential in Putnam County such as “employees’ dates of birth; names, addresses, telephone numbers, and email addresses of the public and county employees” and “numerous types of private, personal information of members of the public who interact with the county in a wide variety of ways, such as people applying for a trade or business license.” However, it was not clear if all of the items listed can be withheld in every circumstance under state or federal law.
Further, the legislators declared that if a question arises “about whether a record should be produced or withheld in response to a FOIL request, the county code will still favor disclosure to the public.”
At the hearing, residents from across the county criticized the law.
Tim Miller, a Philipstown resident and longtime planning consultant to municipalities, said that when he became Philipstown’s planner in 1990, he was “stunned” by “various shenanigans” that occurred, including private discussions among town officials, influential residents and developers pursuing “their own personal interests.”
As Philipstown’s planner for 19 years, “I did my best to be transparent” and “never once considered labeling anything ‘confidential,’ even if I knew that the public may disagree with me and criticize me or even ridicule me at public hearings or in local papers,” he said.
Miller objected that Putnam’s law allows consultants, along with officials and employees, “to willy-nilly declare any or all” material “confidential, and, therefore, hide it from public view. Not only is this inconsistent with New York State law and likely to be challenged, it is a sad statement about the morality, transparency and openness of our own county government.”
Linda Kagan, an attorney and a board member of the Cold Spring Area Chamber of Commerce, argued that “transparency is the hallmark of good governance. And, in a democracy, it is essential.”
The law, said Tim Miller, “is a sad statement about the morality, transparency and openness of our own county government.”
Attempting “to expand the ability to remove documents created for county government and its citizens by making them ‘confidential’ without a proper basis or detailed decision-making process is simply wrong, if not unconstitutional,” she said, while “capriciously drafting and rushing any law into effect is at best careless and at its worst dangerous.”
Scott Reing of Carmel, who chairs the Democratic Party in Putnam but who said he spoke as an individual, similarly warned that the law “is arbitrary and capricious” and potentially unconstitutional. “A local law cannot supersede state or federal law,” he said.
The Carmel-Kent Chamber of Commerce, too, opposed the law, saying its members “do not see this as having viability” and believe it would foist an “undue” financial burden on taxpayers as the county defends a law “that should not have been made in the first place.”
The Putnam County League of Women Voters; Common Cause New York, which promotes government accountability; and the New York News Publishers Association (of which The Current is a member) also submitted statements opposing the law.
On its website, the Putnam County Firearm Owners’ Association urged its members to support the law and arrive at the hearing early, because “the liberals plan to pack the house.” The group said that the law helps ensure “that our pistol-permit applications and gun-related documents can be protected from being published by anti-freedom newspapers and other anti-2A [Second Amendment] organizations.”
At the hearing, several attendees cited the law’s importance to gun owners. “Although I’m a believer in government openness and the public right to know what’s going on, I’m also very concerned about privacy,” said Steve Clorifilla, a former police officer. “I don’t want my private information available to possible terrorist groups, criminals or other crazies.” (Gun licenses are public records under state law but license holders can keep their information confidential in certain circumstances. See below.)
Under state law, licensed gun owners who are active or retired police officers, have valid orders of protection, are witnesses or jurors in criminal proceedings or believe the release of the information would otherwise put them at risk or subject them to harassment can request that their license information be kept confidential. To file a request in Putnam County, see bit.ly/putnam-exemption, and in Dutchess, see bit.ly/dutchess-exemption. Spouses, domestic partners and household members of licensed gun owners or applicants can also make the request.
“I don’t share the paranoia of residents of Cold Spring and Philipstown,” said a Kent gun owner. “I trust county government.”
Marilyn Miller of Brewster said those who oppose the law err in considering state laws sufficient to protect privacy — “just look to the other side of the county,” where in 2018 Philipstown adopted a law on firearm storage. She referred to the “uproar” as baffling. “We are a constitutional republic, not a democracy,” she said. “A democracy is mob rule.”