Gotham Gazette Despite Administration Launch, Legislators & Advocates Vow to Move Forward on Open FOIL by Kristen Meriwether
NEW YORK - On Monday June 9, the de Blasio administration surprised advocates and city council members alike by announcing the first-of-its-kind online City Hall FOIL tracker. It wasn't the idea - allowing citizens to submit and track Freedom of Information Law requests to the mayor's office online - that was the surprise, but the fact the announcement was made at a hearing on a bill that would legislate a much more robust version of exactly what the mayor's office was announcing.
Counsel to the Mayor Maya Wiley, who unveiled the City Hall portal, would not directly answer if the City supports the Open FOIL bill which would require the City to create an online portal to track FOIL requests of every city agency and display the data from completed requests. Wiley called the legislation "premature," but reiterated the City supports the same goal as the Council: to improve the FOIL system and bring greater transparency to government.
If the City Hall FOIL tracker was unveiled as a way to quell the call for legislation, it didn't work. Gotham Gazette reached out to the stakeholders behind the bill and found unanimous support for the legislation and an unfettered desire to continue to push for it.
"This legislation is here to stay," Council Member Ben Kallos, who is one of three lead sponsors on the bill, said following the hearing June 9. "It is here to be passed. It is here to become law. It is just a matter of time."
"The mayor's office has a good start, as far as their tracker, but I still support our legislation," Manhattan Borough President Gale Brewer, another lead sponsor, said June 11 at City Hall. She added she is open to meeting with the mayor's office to discuss their concerns and changes needed to get the bill passed. Kallos expressed a similar desire to work with City Hall on the bill.
Rachael Fauss of Citizens Union*, a good government organization that is part of the New York City Transparency Working Group, echoed Brewer's assessment, saying that the City Hall tracker is a small step in the right direction on transparency to build upon, while "The City Council's Open FOIL legislation is a much bigger step forward, and a proposal that we will continue to actively support."
Advocating on FOIL
The de Blasio administration pitched the City Hall FOIL tracker as an "excellent first step," one that would be used as a pilot for other agencies. But when pressed for a timetable or a plan to achieve that goal, Counsel Wiley had no specific answer. She said the administration wants to use its prototype and assess the FOIL systems at each agency before moving forward.
At first glance it appears the administration is taking proactive steps to address an issue that Mayor de Blasio brought up in 2013 when he was Public Advocate. But his solution and the manner in which it was unveiled has led some to question if the new tool is really a solution at all.
"Yesterday was a little bit of a song and dance from the law department," said Noel Hidalgo, executive director of BetaNYC and another member of the New York City Transparency Working Group, which helped draft the Open FOIL bill.
"As public advocate, [de Blasio] spoke about the frailties and the inefficiencies of FOIL," he added. "Yet it took them six months to announce they had a system in place from day one for City Hall? For me, it just doesn't line up."
As public advocate, de Blasio released a report in April of 2013 calling out then-Mayor Michael Bloomberg's administration for not having a transparent FOIL process. De Blasio took that message on the campaign trail in his bid for mayor, vowing, if elected, he would be the most transparent and accessible mayor ever.
During his first five months in office, de Blasio gave no public indication his administration was working to fix the FOIL system. According to Wiley, discussions about the City Hall FOIL tracker began in January, but word never reached the Council side of City Hall, particularly Council Member Kallos, chair of the government operations committee and an outspoken open data advocate. Kallos introduced his Open FOIL bill in mid-May, his solution to the very report de Blasio released in 2013.
While advocates agreed the City Hall FOIL tracker is indeed a good first step, they feel it misses the mark on what could truly be an open and transparent system.
"City Hall does not have an 'Open FOIL portal,'"John Kaehny, executive director of Reinvent Albany and the co-chair of the New York City Transparency Working Group, said in an email June 10. The site is missing key information, Kaehny said, such as the topic of the request or the details of the response. He also mentioned without knowing what information is being asked for, the public has no idea if certain types of information is never disclosed or always disclosed.
"In sum, the site doesn't show us much," Kaehny said.
According to Wiley, the tracker was built in-house using staff from the Management Information System team. When asked, she did not have a cost estimate for the project, or exactly how much time it took to build. The tracker does not use open source software, something Kallos includes in his Open FOIL bill and has proposed other legislation to increase throughout city government.
Partnering with Code for America, the City of Oakland used open source software to create its own Open FOIL system last year. The fact that the de Blasio administration didn't utilize that free tool for their own product came as a surprise to some.
"This seems to be a home-grown product, which is fine. But why reinvent the wheel when you have cities like Oakland that already have the software that is out there and in place that could have done the same job?" Hidalgo said.
A Curiously Quiet Release
For a site that was designed to increase transparency and meet a campaign goal of the mayor, the way in which the City Hall tracker was rolled out raised eyebrows.
Unlike many of the mayor's other initiatives, there was no press conference announcement. Instead, the announcement was made at the council hearing. While press conferences are not always called, especially for smaller initiatives, the mayor's office typically issues a press release for a new program of any significance. Neither happened: no press conference, no press release.
In addition, the tracker itself is difficult to find online. It is not on the home page of the City's website, NYC.gov, but several layers in, near the bottom of the "Contact the Mayor" page. The URL is a lengthy bunch of seemingly random letters and numbers, not something a citizen could easily remember or fully optimized for search engine results.
"To me, that doesn't show the steps you would think this mayor would be taking to bring about FOIL transparency and reform, particularly with their own understanding FOIL is broken across all the agencies," Hidalgo said.
When asked why there was no press release or a formal announcement, a spokesperson for the administration said there was media present at the hearing and the hearing was open to the public.
During Counsel Wiley's testimony she repeatedly spoke about the enormity of the task of getting all city agencies to comply within a year, as the council bill mandates. She argued agencies have different protocols and each must follow different privacy and protection laws.
For the advocates and legislators, all of whom worked in some capacity on getting the city's Open Data law passed in 2012, that claim doesn't add up.
"I don't think the FOIL issue is as complicated as Open Data because people already FOIL," Brewer sad. "I am a little challenged by the fact it is so complicated to come up with these lists or to put things online."
She noted that with the Open Data law the City had legacy databases and in some cases didn't even know where all the databases were. FOIL requests are already answered on a daily basis.
"I am confident that this mayor can create 200,000 units of affordable housing and I am confident he can do universal pre-kindergarten," Gene Russianoff, senior attorney at NYPIRG, said at the hearing on June 9. "So I am also confident he can take on the issue of Open FOIL and make it a more open and transparent process."
The administration argued for a phased-in timetable instead of the one year outlined in the Council bill. The City made the same argument during negotiation for the Open Data bill of 2012. The City won and phase-in began and is to be completed by the start of 2018.
To Legislate or Not to Legislate, That is the Question
There is no question the de Blasio administration wants to reform the FOIL process, but it is resistance to legislation, at least for the time being. While advocates for the law appreciate the desire to change, they feel allowing the administration to implement changes on its own timeline is not the best way to go about reform.
"It would be a mistake for the City to proceed ahead without a law," Russianoff said by phone June 10. "It would make things much harder for the city if there was not a law."
He added, "Human beings are only motivated by deadlines. That is what you need, otherwise you have a giant headache of getting city agencies to comply."
It's not only about giving the City a timeframe and framework by which to comply, but by codifying reform into law, you ensure the changes stick for the next administration.
"As we saw last year, governments change. City governments take new directions. The laws [the City Council] passes are meant to stand changes in administrations," said Azi Paybarah, a reporter for Capital New York, who testified at the June 9 hearing. "It is nice to have that tradition, but what happens when governments change, administrations leave, officials leave? I think the idea there is no need for this legislation is overstating it somewhat."
Council Member James Vacca, another lead sponsor of the bill, said he sees the City trying to avoid legislation as the way the new administration has done business thus far. He pointed to a bill he introduced that would require the Department of Design and Construction (DDC) to notify New Yorkers 72 hours in advance when shutting off water for street repairs.
He said after introducing the bill he got a call from the DDC Commissioner to let him know DDC would do what he was asking. On that particular issue, Vacca felt it was enough and dropped the bill.
"Some council members may want the bill and the legislation and the hearing, and the bill signing, but someone like myself, at this point, I am here to get things done," Vacca said by phone June 10. "And if that means if there is not a bill bearing my name but I was instrumental in getting the desired outcome, that is fine with me."
When pressed about the benefits of legislating, Vacca said it depends on the issue, but in the case of Open FOIL, he doesn't feel future administrations would be able to go back on what the mayor's office is implementing.
"In this case I think once you give people transparency it will be very hard to backtrack," Vacca said. "I think it is irreversible based on the technology we have today."
He added, "So codifying it, in this instance, is not as much of a concern as it would be in other instances."
Vacca said, though, that he will continue to co-sponsor the bill and hopes to work with the administration to address its concerns and get the bill passed.