behind the news

Why We’re Suing

Let's see those e-mails, governor
August 27, 2010

Today, the Columbia Journalism Review will file a lawsuit in an Albany court, seeking to compel New York state to properly fulfill its duties under the state’s Freedom of Information Law—duties we believe the state is speciously and cynically trying to shirk by citing inapplicable exemptions and New York’s shield law.

Here’s how we got to this point. Way back on March 4, Peter Kauffman, Governor David Paterson’s director of communications, resigned, saying that as a former Navy officer he took “integrity… seriously” and that he could not “in good conscience continue in” his position.

His departure came in the midst of one of the one of the strangest chapters in New York’s recent political history. For weeks, the actions of the governor and his staff had been subject to an aggressive investigation by reporters from The New York Times, in the wake of a domestic violence case involving one of the governor’s most trusted aides. While the paper worked its sources, Albany’s rumor mill went into overdrive about the coming article, presumed to be a bombshell. Would it be hookers? Cocaine? Bribe taking? All of the above? With assists from social media and a hyperactive press corps, such speculation burst into the state’s political conversation.

Kaufmann’s resignation reminded Clint Hendler, our staff writer who specializes in politics and government transparency issues, of two recent public records requests. In 2009, just after South Carolina governor Mark Sanford’s staff told the press that their out-of-pocket boss was off “hiking the Appalachian Trail,” John O’Connor, a reporter at The State, filed an open records request that netted e-mails between reporters and the governor’s press office as the scandal brewed. That ingenious reporting trick inspired John Cook, then a reporter with Gawker, to file with New York for 2008 e-mails between former governor Eliot Spitzer’s press secretary and reporters, in the period immediately around his prostitution meltdown.

The documents yielded by both these requests contained some interesting nuggets, showing reporters aggressively angling for information and exclusives and revealing some of the tactics used by press secretaries to manage coverage. So Hendler thought that Kaufmann’s e-mails might be worth a look, and, the afternoon of his resignation, submitted a request under New York state’s Freedom of Information Law (FOIL) for the last seven weeks of e-mails between members of the press, Kaufmann, and his deputy, press secretary Melissa Shorenstein. When Shorenstein also resigned two weeks later, saying she’d been “unwittingly” caught up in the scandal, Hendler filed an amending request seeking similar e-mails through the time of her departure.

The requests—technically in Hendler’s name—entered an acknowledge-and-delay phase familiar to most anyone who has used freedom of information laws, until April 29, when, despite finding over 2,300 responsive e-mails, the executive chamber wrote us to say that, by the state’s reasoning, the public can’t see a single one of them. An administrative appeal garnered nothing further.

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So we’re suing.

Why? Well, let us count the ways. First, we’re journalists, and we don’t like taking no for an answer.

More seriously, the records we’re seeking would likely help illuminate the press’s role in a bizarre chain of events in state history that led to the appointment of an Independent Counsel and to the governor dropping his election campaign. Sure, there will be lots of chaff in those e-mails. But perhaps they’d offer some information explaining the resignations, show reporters testing the most bizarre theories circulating at the time, or catalogue an evolving damage-control line from the state’s highest official.

Any of that would all be potentially interesting, and that’s why we will exercise our rights under the law and file suit.

But given the response from the governor’s office, we now also think this suit must be waged to protect the full force of two laws that the state’s press corps rely on: the Freedom of Information Law and the state’s shield law. As we argued in an editorial headlined “Shield Abuse” in our July/August issue, we like freedom of information laws and we like shield laws. We don’t like it when the latter is cynically pitted against the former, in a way that could ultimately damage the shield.

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.

The Editors are the staffers of the Columbia Journalism Review.