True Transparency in Gov’t: A “Common Sense” Approach

“I know it when I see it…”

-- Potter Stewart, Associate Justice of the Supreme Court

Jacobellis v. Ohio, 378 U.S. 184 (1964) (concurring)

Last year, in a dispute surrounding emails allegedly sent by then-New York Attorney General Eliot Spitzer concerning an investigation of officials at AIG, New York Supreme Court Justice Christopher Cahill ruled that that the use of personal email accounts by government officials for agency-related business cannot be used as a shield against disclosure under the State’s Freedom of Information Law (FOIL).

“Pursuant to judicial precedent and the underpinnings of FOIL, the [Office of the Attorney General] has both the responsibility and the obligation to gain access to the private email account of former Attorney General Spitzer to determine whether the documents contained therein should be disclosed to petitioner in accordance with its FOIL request.” Smith v. N.Y. State Office of the AG, 2012 N.Y. Misc. LEXIS 4166 (Sup. Ct. Albany Cty. 2012).

The case continues to wind its way through New York’s courts. Just last week, the New York Law Journal reported that the State continues to argue that “FOIL does not compel disclosure of records that are not in the possession or control of the state at the time the request is made.”

Spitzer isn’t the only elected official in New York who has sought an end-around FOIL. Governor Andrew Cuomo (in)famously uses BlackBerry PIN messages that are not retained by provider Research in Motion and do not leave a paper trail.

Former Mayor Michael Bloomberg used “Bloomberg.net” email addresses with his top officials, siphoning public business off of “official” email and on to private servers that are either beyond the reach of FOIL or, at the very least, extremely difficult for public agencies to track down.

In 2002, Former Mayor Rudolph Giuliani sent his official papers to a nonprofit he controlled instead of transferring custody directly to the city’s Municipal Archives.

All of this has taken place despite the fact that New York’s Committee on Open Government (COOG) has issued advisory opinions declaring that private communications, when used to contract public business, are subject to FOIL. “[E]mail kept, transmitted or received by a town official in relation to the performance of his or her duties is subject to the Freedom of Information Law, even if the official ‘uses his private email address’ and his own computer.”

Furthermore, it is curious the lengths elected officials go to avoid FOIL given that FOIL specifically provides an exception for “inter-agency and intra-agency” deliberative materials (see N.Y. Pub. Off. Law Sec. 87(2)(g)) and courts routinely uphold the withholding of material about press strategy and other potentially sensitive political decision-making.

So what’s a good government advocate for transparency to do? How do we determine what is a problematic end around FOIL vs. what is a routine practice essential to the open and frank deliberation that any political office must necessarily engage in?

The Embodiment of Government Secrecy.
CC License: Flickr user "Raoul Pop"

First, we can acknowledge how technology has far outstripped FOIL (which was initially passed in the wake of Watergate, in 1976) and that new regulations and penalties may need to be devised to increase the potential cost of moving governmental communications “off book.” For instance, there may well be no reason why official communications should occur outside of official channels that are ultimately within the possession of a given government entity. If that is indeed the case, perhaps penalties should attach to the use of private communications for government work, regardless of whether the private email was used in an effort to evade FOIL.

More importantly, I think we need to apply a little dose of common sense—the type that Justice Stewart was referencing what he penned his famous line about knowing pornography when he sees it, or that the Fourth Circuit Court of Appeals discussed in South Carolina State Ports Auth. v. FMC, 243 F.3d 165, 174 (4th Cir. 2001) (determining that an adjudication “walks, talks, and squawks very much like a lawsuit”).

That common sense approach would look at the subjective motivation of the communication in question. For instance, was the use of private email deliberately employed in an effort to avoid FOIL? After all, if it looks like an end around FOIL, it’s probably an end around FOIL.

The New York Post editorial board recently stated, “If politicians can escape scrutiny simply by doing their work via private e-mails, we lose all hope for government accountability and transparency.” I agree and I hope that New York’s courts rule in favor of complete disclosure of public work, whether on government servers or private email.

However, regardless of how the issue plays out in the courts, citizens should demand that elected officials clearly and transparently share their disclosure policy—both what they will affirmatively share (and in what format/timeframe) and what they will withhold so that voters can hold their leaders accountable for valuing true transparency.