Brett Orzechowski on the Campbell Conversations

Apr 28, 2018

Politics in Albany seems plagued by corruption. Could more transparency of information help? This week on the Campbell Conversations, Grant Reeher talks with Brett Orzechowski, a professor of Management and Media at Utica College, and the author of "FOIL: The Law and Future of Public Information in New York.

Interview Highlights

Reeher: Let’s start with a brief review of some of the basics when it comes to these kinds of laws. There is FOIA at the federal level—the Freedom of Information Act—and then there are similar laws at the state level, and the New York version being the topic of your book—FOIL, the Freedom of Information Law. So, just briefly, what are the central purposes of these laws, and how do they work?

Orzechowski: The Freedom of Information Law…is New York’s specific public information law…It’s essentially giving the power to the people…to access government, public records…Public records have changed in definition, so when it first started in the wake of Watergate—where there was discussion on the state level of how do citizens access this information and allow the government to become more transparent—it was much different. Those were documents. Now, we’re talking about video. We’re talking about data. We’re talking about emails. We’re talking about electronic communication. So really, we’re at a tipping point, so to speak, in terms of how do we describe and how do we interpret public information.

Reeher: Thinking about the New York state law, what would you describe as the most important limits or boundaries around which then people can’t get information?

Orzechowski: Right now, more so than probably any other time in FOIL’s history…the laws of plasticity have really been challenged…Law enforcement all across New York state is doing a fantastic job, but again, as we’ve seen over the last few years and probably within the last decade, that’s been challenged by, I would say, a few bad actors. So, people have that misinterpretation, saying, “Well, if law enforcement’s doing it, it should be open. If government officials are communicating, it should be in the public’s interest.”…It’s really based on interpretation, and that’s where it gets really interesting because the law’s essentially built on trust…And that’s not necessarily always the case.

Reeher: When a request is made for the information, how does that work?

Orzechowski: By law, if you file a Freedom of Information Law request, the agency has five days to acknowledge the request. Most likely, you would do via email…After those five days, then they have 20 business days…to acknowledge whether or not that record exists or we’re going to fulfill your requests. At that time, if that record exists, there is no time table when you’re going to get that record. If it’s denied, you can appeal that…There is no time table, and that’s interesting because you and I could put in a public record for one document. They may have that the next day…There are people out there that are requesting 20,000 pages of documents…That still has to go through a vetting process legally…If that record exists, you can get it in two hours. If that record exists, you may get it in 20 months. There’s no rhyme or reason, and that varies agency by agency.

Reeher: If the request is denied, then a reason for that denial needs to be articulated?...What might an elected official say in response as a valid reason for denying it?

Orzechowski: Each agency…has to state which part of the law that it’s not in compliance with. Then, you can appeal that decision. If that appeal [is] subsequently denied, you then can reach out to the Committee of Open Government. They can write an advisory opinion…Then, you can take some legal recourse.

Reeher: Give me some common examples of what a government agency other than law enforcement or an elected official would site as a reason to deny a request.

Orzechowski: We’ve seen a proliferation of this one passage over and over again that government likes to cite: an unreasonable invasion of privacy…That really accelerated after 9/11 for a few reasons, but now, it seems to be common that most government agencies, if they deny, say it’s an unwarranted invasion of privacy.

Reeher: There are different ways in which different kinds of information might be considered to be publicly available…Are there certain kinds of information that generally are more transparent than others?

Orzechowski: The concept of proactive disclosure, it’s a really fascinating concept because now, with digital tools, municipalities and agencies have the ability just to push out this information…Police blotters, crime activity, those are always big points, but you also have really the request for obscure information because FOIL becomes now this very personal quest for information…Every situation is unique…What we’re seeing more of is video, especially with law enforcement. More law enforcement bodies are now deploying BWCs—body-worn cameras—especially in inner cities, where there’s potentially some racial tension…It all depends on the individual, and a lot of this is based off of news as well. Attorneys use FOIL at their leisure to access this information that’s going to help them with their case, and then you see the next step with news agencies picking it up…A lot of this is triggered by newsworthy events.

Reeher: This may be a tough call to make, but where would you say that New York as a state stands relative to other states in terms of its overall information accessibility?

Orzechowski: 2018 is shaping out to be potentially a better year for public corruption trials in New York state…I think what we’re seeing now, especially with newsworthy events, is that people are exercising FOIL more and more. But in the grand scheme of things, if you break it down state by state…New York is high on the scale of pretty strong public information law…In many ways, the federal legislation was strengthened because of New York’s legislation in the mid-‘70s to late-‘70s.

Reeher: What would you anticipate the future of freedom information? What do you think would be the next big development in that area?

Orzechowski: I think we’re seeing it. We’re seeing it unfold right now. And one has to do with law enforcement and BWCs. Privacy is a big issue, and a lot of that…really started rising to the forefront of the discussion right after 9/11…If you ask anybody in law enforcement, if there’s an officer that needs to be held accountable because [of] his or her actions, they want them gone. However, if there’s something that’s going to create a public perception of indifference or any unfair practices, we want to put that out there right away and say, “Hey look, law enforcement had the right to do so.”…Where does that take us? I don’t know. And the second one is on data…The data portal is a good start. We need more of it because especially with health and transportation—really strong societal issues for a crumbling infrastructure in New York state—again, there are a lot of bright people out there that know how to access that data. But most government agencies only release, what, maybe 20 percent of it? What about that other 80 percent?