Editor’s Notebook: Top Secrets

This past week The Highlands Current was named one of three finalists for a national First Amendment Award for its coverage of a Putnam County secrecy law designed to make it more difficult for the public and press to access records.

The award, presented by the News Leaders Association, recognizes journalism that “protects or advances freedom of information principles and/or overcoming significant resistance to the application of the First Amendment.”

In a series of reports, Liz Schevtchuk Armstrong detailed an effort by the county executive and eight of the nine legislators to implement a system that, until it was later revised, allowed any county employee or contractor to mark a document “Confidential” to make it secret, with penalties assessed on anyone who shared the information. Only Nancy Montgomery, who represents Philipstown and is the only Democrat on the panel, protested that maybe the law was a bad idea.

A Putnam County “Confidential” stamp

In August I wrote an Editor’s Notebook thanking the Legislature for making my job easier with its new law, because each month I could request through the state Freedom of Information Law (FOIL) all documents marked “Confidential” to learn what the county thought should be kept secret. No more fishing expeditions! The awards announcement — and the rejection on April 23 of my most recent FOIL request for “confidential” records — made me think it was time to review the results.

I have not submitted any requests since the COVID-19 shutdown. But each month from August to January, I asked the Legislature, county executive and Law Department to provide any information marked “Confidential” and — using language from the proposed law — “kept, held, filed, produced or reproduced by, with or for the [agency], in any physical form whatsoever (including electronic media), including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photographs, letters, microfilms, computer tapes or discs, rules, regulations or code, whether a draft or final document.”

The results, so far, are below. I have linked to all the documents deemed safe for the public. Proceed at your own risk.

As background, the Freedom of Information Law — which anyone can use — provides nine vague exemptions that government officials can cite to keep documents secret. For easy reference, we have used fun icons for each of those cited by the county when denying records. (Scroll down for the key.)

A few observations: (1) When a FOIL request is denied, there is no indication of the number of documents withheld, so it’s not clear how many are being marked “Confidential” each month; (2) Despite most not having law degrees, county employees and legislators appear highly skilled at only marking documents “Confidential” that will later be determined by the Law Department to be exempt from FOIL; and (3) It appears I wore out my welcome sometime in October.

August 2019

County Executive
“No responsive documents”

Legislature
Partially denied

Four documents were provided: (1) A memo written by Sandra Fusco, commissioner of planning, to County Executive MaryEllen Odell and others regarding the “Disadvantaged Business Enterprise Program, 2020, 2021 and 2022”; (2) A table showing damage in 2019 to county-owned vehicles involved in crashes; (3) A preliminary application for a grant from the State and Municipal Facilities Capital Program by the Sheriff’s Department to receive funds for license plate readers; and (4) A sample lease for tenants at the Putnam County Veteran’s Residence, along with a welcome packet for renters.

Law Department
Denied

September 2019

County Executive
“No responsive documents”

Legislature
Partially denied

One document was provided: A grant application from the Sheriff’s Department to buy license-plate readers (see above).

Law Department
Partially denied

One document was provided: A letter from County Attorney Jennifer Bumgarner to Stephen Tomann, a Cold Spring attorney who represented the disbanded Putnam County Visitors Bureau, asking him to provide the newly appointed tourism director with invoices and canceled checks from the first two quarters of 2019 so she could apply for $45,629 in matching funds from the state.

October 2019

County Executive
“No responsive documents”

Legislature
“No responsive documents”

Law Department
Denied

November 2019

County Executive
Denied

Legislature
“No responsive documents”

Law Department
Denied

December 2019

County Executive
“No responsive documents”

Legislature
Denied

Law Department
Denied

January 2019

County Executive
“No responsive documents”

Legislature
Denied

Law Department
Denied

KEY

Attorney-client privilege — “Certain responsive records are not subject to disclosure by state law, that is N.Y.S. Civil Practice Law and Rules § 4503, which makes records consisting of attorney-client communications privileged and not subject to disclosure. Accordingly, access to these records is denied under N.Y.S. Public Officers Law (“POL”) § 87(2) (a) which provides for denial of a FOIL request when records are specifically exempted from disclosure by state law.”

Inter-agency or intra-agency materials — “Responsive documents maintained by the county are exempt from disclosure, because they constitute inter-agency or intra-agency materials which are not: i. statistical or factual tabulations or data; ii. instructions to staff that affect the public; iii. final agency policies or determinations; or iv. external audits, including but not limited to audits performed by the comptroller and federal government (See N.Y.S. Public Officers Law § 87(2)(g)).”

Law-enforcement purposes — “Responsive records are exempt from disclosure pursuant to POL § 87(2)(e)(i) and (ii), which are compiled for law-enforcement purposes and which, if disclosed would interfere with law-enforcement investigations or judicial proceedings as well as deprive a person of a right to a fair trial or impartial adjudication.”

Pending litigation — “Responsive records consisting of Putnam County’s pending litigation cases, have been denied pursuant to POL Section 87(2) (b) and Section 89(2)(b), and NYS Civil Practice Law and Rules § 4503 as the disclosure of same would constitute an unwarranted invasion of personal privacy and disclosure is exempted by state law.”

Privacy — “Disclosure of such record would constitute an unwarranted invasion of personal privacy. See Public Officer’s Law § 87(2)(b).”


HOW WE REPORT
Trust MarkThe Current is a member of The Trust Project, a consortium of news outlets that has adopted standards to allow readers to more easily assess the credibility of their journalism. Our best practices, including our verification and correction policies, can be accessed here. Have a comment? A news tip? Spot an error? Email editor@highlandscurrent.org.

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