The governor’s office’s denial letter (pdf) gives two rationales for withholding the records. The first suggests that the e-mails would “reveal competitively sensitive information.” The law does allow the state to hold back private businesses information they may hold on the order of trade secrets—manufacturing formulas, for example—but, in this case, that rationale is silly. The state is claiming that the e-mails—none of which are less than five months old—might reveal proprietary lines of reporting, sources, or “methods used by reporters to conduct their research.” Proprietary methods like e-mailing the governor’s communications staff for information or comment? Please.
The other rationale is, to give it credit, at least more creative. The FOIL statute allows the state to withhold documents that other portions of state law demand be kept private. In this supposed spirit, the governor’s office has denied the records by citing the state’s shield law, which can offer journalists, depending on the circumstances, protection against being held in contempt for refusing to comply with a subpoena.
On its face, that won’t fly. The shield law protects journalists from subpoenas about their sources and reporting. It does not protect sources from being compelled to testify. Expanding its protections to sources—especially to government sources, paid by taxpayers, and acting in their official capacity—would pervert and dilute the law. Besides, any talk of testimony is entirely besides the point here. The FOIL process is not a subpoena, and the shield does not protect public records—even if those records reflect some aspect of a journalist’s communication with a public official—from being disclosed pursuant to a proper records request.
Amazingly enough, it wasn’t long ago that the Paterson administration would have agreed with us. Remember John Cook and his 2009 request for Governor Spitzer’s press secretary’s e-mails? It was fulfilled without complaint by the Paterson administration, without any exemptions claimed. But once FOIL’s requirements were trained on Paterson, and threatened to expose something about the operations of his staff, his lawyers found reasons to deny.
Who knows exactly what a fulfilled request would reveal? But it already has revealed something about how freedom of information requests are sometimes handled by governments, who can deny on slim or specious legal grounds with the bet that the requester will throw up their hands, frustrated by the expense and hassle of taking the government to court. It’s a cynical ploy that frustrates the public and the press’s right to know.
And luckily, that won’t be the case here, thanks to our lawyers at Friedman & Wittenstein, who have generously agreed to take the case at no charge to us. Instead, they hope to recoup their costs under a provision of New York’s FOIL allowing plaintiffs to bill the state if the judge finds that a denial was especially capricious.
And if that’s the standard, we like their chances.