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.

Bike Share: Public Health + Public Transit = Public Subsidy?

“To ride a bicycle is in itself some protection against superstitious fears, since the bicycle is the product of pure reason applied to motion. Geometry at the service of man! Give me two spheres and a straight line and I will show you how far I can take them. Voltaire himself might have invented the bicycle, since it contributes so much to man’s welfare and nothing at all to his bane. Beneficial to the health, it emits no harmful fumes and permits only the most decorous speeds. How can a bicycle ever be an implement of harm?”

-- Angela Carter, “The Lady of the House of Love”, 1979

Last week, the City of Boston announced an innovative partnership with the Boston Medical Center that allows doctors to “prescribe” memberships to Beantown’s “Hubway” bike share system for as little as $5 a year.

The  “Prescribe-a-Bike” program, which comes with a free helmet, is designed to combat an urgent public health crisis: obesity. As noted by the Boston Globe, more than 1 in 4 low-income residents in Boston is obese—twice the rate of higher-income residents.

My precious "Founding Member" key

To date, New York has not made a similar commitment to ensuring that all Gothamites have access to its bike-share program, CitiBike. As DNAInfo reported, of the first 62,000 annual members, only 285 were residents of the New York City Housing Authority (less than 0.5 percent of the total), despite considerable outreach efforts by the NYC Department of Transportation. One considerable barrier continues to be cost. While Boston offers discounted memberships for $5, New York’s discounted membership still costs $60.

Despite innovative public health initiatives to curb smoking and encourage healthy eating, the Bloomberg Administration left office with New York still in the grips of an obesity epidemic.

As noted in NYC’s “Take Care Report”, published in September 2013, more than 50 percent of adults and 40 percent of children in grades K-8 are either overweight or obese. More than 5000 New Yorkers die each year from obesity-related illness. Black New Yorkers are almost three times as likely, and Hispanics twice as likely, as whites to die from diabetes. Furthermore, people living in very high poverty remains twice as likely to report not eating any fruits or vegetables on a daily basis.

New York should follow Boston’s lead by viewing bike share as a core element of the City’s public health infrastructure. By working with our world-class hospitals, we too can curb obesity by “prescribing” bikes as a healthy, efficient option for commuting and recreation.

Of course, bike share isn’t just good public health policy. It’s smart public transportation, too. New Yorkers have taken over 7 million Citibike trips covering over 13 million miles since the system launched last May. By comparison, the East River Ferry—which most have seen as a smashing success—provides about 1.2 million rides annually.

Bike share is now an integrated part of mass transit infrastructure in cities across the country and around the world. It’s time we started treating them that way.

That means amending the federal tax code to permit bike share membership fees to qualify for commuter tax benefits. Today, the federal transit benefits program subsidizes parking fees—encouraging drivers to bring their automobiles and the congestion they create into the hearts of America’s cities. And yet, bike share—with all its attended positive consequences—remains outside the ambit of that critical benefit program.

In addition, cities need to work with private sector partners—as New York City has done with Billy Bey ferry company and others—to expand availability of bike share to new neighborhoods using public dollars, rather than assuming that bike share should be self-sustaining purely on the backs of its users.

Lastly, we need to do a better job of integrating bike share siting decisions into broader, regional mass transit capital programs. For instance, in New York, CitiBike must work with the MTA to plan how bike share can augment the effect of new Select Bus Service routes.

Bike share is here to stay. The question is: will we have the foresight to view its prosperity as part of a broader public health effort and an integrated public transit system? For New Yorkers, Bostonians, and others, here’s hoping the answer is yes.

All Aboard the Pension Transparency Express

“A lack of transparency results in distrust and a deep sense of insecurity.”

-- The Dalai Lama, 2012

Last month, a Blue Ribbon panel commissioned by the Society of Actuaries issued a report on public pension funding in the United States. The results were sobering. The study found that “the financial condition of public pension trusts has weakened during the last 15 years, while its exposure to future financial and other risks has increased.” More troubling, it concluded that public pension funds are opaque, consistently failing to provide adequate data concerning future liabilities.

As a result, one of the major recommendations is to have pension actuaries provide plan boards of trustees and the public with the fair value of pension obligations and estimates of the annual taxpayer contributions needed to cover them.

Pension funds have long resisted such calculations, instead preferring traditional actuarial estimates, which, as the New York Times described, are “smoothed, stretched, averaged, backloaded and otherwise spread across time.” Indeed, the unions whose members benefit from such plans (disclosure: I am a member of one such plan—the New York City Employees Retirement System) fear that such transparency will “be used to cast public pensions in the worst possible light to whip up fervor against them and justify the termination of the plans.”

While that is a reasonable fear given the ubiquity of pension naysayers intent on gutting defined benefit pensions regardless of the consequences, the true risks to the future of such pensions are (a) failing to grapple with gap between assets and liabilities—which some estimates suggest have risen to over $4 trillion from $3.1 trillion in 2009 (Massachusetts has a $63 billion shortfall according to Moody’s (see map), and $89 billion according to State Budget Solutions)—and (b) losing the confidence of the public by failing to be transparent about pension management.

That fate appears to have already befallen the board of the Massachusetts Bay Transportation Authority (MBTA) pension fund, which, because it was organized as a private entity rather than as a public pension fund, is not legally required to hold open board meetings or respond to public requests for information. Thus, despite the fact that taxpayers fund the MBTA trust to the tune of $55 million a year, they are largely left in the dark not only about the trust’s funded ratio (its assets compared to liabilities), but also the investments made by the fund.

Indeed, as the Boston Globe reported, the MBTA fund recently lost $25 million in an investment in a bogus hedge fund—an investment pitched by a former MBTA Executive Director. This relationship was not disclosed publicly by the pension fund.

In politics, when individuals or institutions try to hide the proverbial ball, it only attracts greater scrutiny and more distrust (as the Dalai Lama wisely pointed out). Thus, the way to defend public pension funds or other policies must never be to shy away from their pitfalls, but to confront them head on—and in so doing, treat citizens as adults capable of making rational judgments about the costs and benefits of various government programs.

For far too long, our leaders have blithely asserted that we can have something for nothing. And We the People, to our shame, have not only accepted these offerings, but also demanded them.

In the context of public pensions, instead of sharing in the burden of their cost, states and cities across the country have systematically shifted the burden onto the next generation of government workers, chipping away at our children’s benefits in an effort to save our own. This phenomenon is not limited to pensions. Rather, it infects every part of our public life—from the idea that we can somehow maintain our roads and bridges without raising the gas tax for 20 years to the belief that we can allow a brave minority of our contemporaries to fight and die in foreign wars while giving ourselves huge tax cuts here at home.

Transparency may not solve all these problems. But by shining a light on the true effect of our choices, maybe, just maybe, we’ll look in the mirror and decide we don’t quite like what we see.