Lack of transparency in New York Government abetted by Federal failure to comply with open records laws

By LOUIS FLORES

In 2013, former U.S. Attorney Preet Bharara gave a speech before the Citizens' Crime Commission in which he lamented the dearth of openness by the powers that be. ... "[T]here is a substantial transparency problem throughout New York government," then U.S. Attorney Bharara said, according to a transcript of his prepared remarks. In 2015, then U.S. Attorney Bharara was interviewed for a report published by The New York Times in which he urged citizens to consider information made publicly available during the corruption trials of former Assembly Speaker Sheldon Silver (D-Lower East Side) and former State Senate Majority Leader Dean Skelos (R-Rockville Centre) as revelations for a guidepost for reform, telling The New York Times, in part, that, "It would be, I think, irresponsible not to spend some time talking about what those things, what those trials, have taught us, and what those cases may mean for how everyone can get good government," he said, referring to the information presented at the trials. One day after The New York Times published its report, then U.S. Attorney Bharara spoke broadly during an interview on WNYC 93.9 FM about the "facts that were exposed at two detailed trials," referring to the corruption trials as having "laid bare" information about acts that two juries found to be corrupt.

Former U.S. Attorney Bharara's complaints about the lack of Government transparency and his promotion of the use of his former office to provide the public with information about alleged corrupt inner workings of Government contrasts with the larger record of Federal prosecutors' offices and that of their parent Government body, the U.S. Department of Justice. As noted in widespread media reports, the top Federal law enforcement agency has the worst record on transparency in the Federal Government. In 2014, POLITICO published a report noting that the DOJ was the top defendant in lawsuits brought by filers of Freedom of Information Act requests, aiming to compel the agency to comply with the Federal open records law. In 2016, a note published by the Freedom of the Press Foundation revealed that the DOJ had lobbied against strengthening the Federal open records law. Whenever the makers of FOIA Requests file lawsuits to compel the DOJ to comply with the Federal open records law, Government attorneys from the U.S. Attorney's Office in the relevant jurisdiction are called upon to defend the Government's noncompliance with FOIA. In the most recent FOIA Lawsuit filed by Progress Queens against the DOJ, seeking records of former U.S. Attorney Bharara's speeches, attorneys from the U.S. Attorney's Office for New York's southern district were called upon to defend the DOJ's lack of compliance with FOIA.

On the one hand, Manhattan Federal prosecutors have been responsible for exposing and prosecuting political and campaign corruption from Battery Park to Niagara Falls, adding to a social movement calling for Government reform. During the tenure of former U.S. Attorney Bharara, the top Federal prosecutor in Manhattan used the media to cultivate the image of a reformer as his office prosecuted 35 cases of public corruption, according to a report provided to Progress Queens by the U.S. Attorney's Office in Manhattan. On the other hand, Manhattan Federal prosecutors have also served as functionaries, defending the Federal Government's own failure to comply with Federal transparency laws, seemingly offering up a contradiction.

In an essay that was included in an anthology, Attacks on the Press : The New Face of Censorship (2017 Edition), the journalist Jason Leopold recounted his experiences with making open records requests. He described how he has observed Government agencies undercut the open records laws by "...imposing exorbitant fees, arcane bureaucratic hurdles and discretionary exemptions to deny documents that are essential to breaking important stories," adding that, "I also began to observe that agencies often do not meet the letter of the law, which is something that is becoming more prevalent today." It sometimes took the commencement of litigation in order for Mr. Leopold to obtain records, he wrote. Though at times Mr. Leopold identified the agencies responsible for withholding records or obstructing open records requests, such as the DOJ, the individuals complicit in the withholding and the obstructing remained nameless and faceless.

According to the experience of Progress Queens with making open records requests, many individuals become involved in processing open records requests within the DOJ. Individuals from several offices with the DOJ participate in making determinations that influence the outcome of open records requests, including the Executive Office of U.S. Attorneys, the Office of Information Policy, the Office of Public Affairs, and, sometimes, a U.S. Attorney's Office if the records are located in a Federal prosecutors' office. According to the experience of Progress Queens with making open records requests, the only way an agency, such as the DOJ, is able to withhold the release of records or to obstruct the processing of an open records request is by coördinated action. After one FOIA Request was made by the publisher of Progress Queens, seeking records about the prosecution of activists, it took the collective action or inaction of multiple agency officials, including, but not limited to, Sanjay Sola ; Sonya Whitaker ; Karin Kelly ; Principa Stone ; and Assistant U.S. Attorneys Angela George, Rukhsanah Singh, and Daniel Van Horn, to wrongly withhold records responsive to the FOIA Request. These, and possibly other individuals, refused to explain the misplacement or destruction of the request file for the FOIA Request, refused to account for the failure to produce records for two years, were not held accountable for the introduction into the Court record of at least one altered document, participated in withholding material information from the Court, and avoided responsibility for the making of misrepresentations during Court proceedings, amongst other misconduct alleged by Progress Queens.

In response to another FOIA Request filed by Progress Queens, seeking records of the speeches of former U.S. Attorney Bharara, allegations of DOJ misconduct include the failure of the agency to timely answer the FOIA Request, the failure of the agency to answer the FOIA Appeal, the appearance of a months-old letter from the DOJ to the publisher of Progress Queens which was purported to be the DOJ's answer to the FOIA Appeal and which had never before been delivered to the publisher of Progress Queens, and the failure of the Agency to comply with at least one Order issued by the judge overseeing the FOIA Lawsuit that had to be filed. For example, the judge ordered that the DOJ, being represented by Assistant U.S. Attorney Rebecca Tinio from the U.S. Attorney's Office in Manhattan, must make a production of records responsive to the FOIA Request by 27 April. Between Assistant U.S. Attorney Tinio and her assistant, Darian Hodge, the complete set of documents that the DOJ was ordered to produce have yet to be received by Progress Queens.

Often, it takes the deliberate participation of judges overseeing FOIA Lawsuits to enable agency misconduct to avoid compliance with open records laws. During litigation in two cases filed over separate FOIA Requests, judges either ruled to keep responsive records secret or to defended the agency's failure to comply with FOIA. In one lawsuit, Chief Magistrate Judge Roanne Mann narrowly construed a FOIA Request filed by the publisher of Progress Queens, amongst other recommendations, to permit the DOJ to withhold responsive records that were shown to exist or to likely exist, a finding that drew an objection from the publisher of Progress Queens. In another lawsuit, U.S. Federal District Court Judge John Koeltl said during an Initial Conference of the parties that the FOIA Request seeking records of the speeches of former U.S. Attorney Bharara had to be considered relative to the reputation of the U.S. Attorney's Office he formerly headed.

The roles of the DOJ, other Federal agencies, and various U.S. Attorneys' Offices in obstructing open records requests complicates efforts by Government reform activists to obtain public documents to further the work of political and campaign reform. Writing generally about his observations of violations of open records laws, Mr. Leopold, the journalist, wrote in his essay that, "agencies from the Department of Defense down to the local city clerk's office frequently and increasingly find ways to use the rules in the service of de facto censorship." Since Government reform activists count on the attorneys in the U.S. Attorneys' Offices in Manhattan and Brooklyn to prosecute public corruption cases, the fact that those same offices are stifling transparency, about which former U.S. Attorney Bharara has complained, aids in the concealment of misconduct that Government reform activists are trying to expose by filing open records requests.

Because the public has come to rely almost solely upon the U.S. Attorneys' Offices in Manhattan and Brooklyn as the ultimate authority to police Municipal and State agencies in New York on matters of ethics and corruption, if the U.S. Attorneys' Offices are not in a position of integrity with open records, that sets a poor example in respect of open records for Municipal and State agencies to follow. It's not so much as a shared culture of opaqueness, but one that cascades down from the Federal Government to State Government to City Government, say some Government reform activists. For this report, Assistant U.S. Attorney Tinio did not answer a request to comment about the example set by the U.S. Attorney's Office in Manhattan in respect of issues related to open records. To some Government reform activists, the Federal prosecutors' offices' lack of credibility on matters related to FOIA hinder efforts to bring Municipal and State agencies into compliance with the State's Freedom of Information Law, or FOIL. For example, Federal prosecutors have no credibility if they wanted to audit, much less to "send the van" to, Municipal or State agencies in an effort to improve Governmental compliance with open records laws, a function that Federal prosecutors could serve, but cannot. Because the public is unable to count on the U.S. Attorney's Office to bring Municipal and State agencies into compliance with open records laws, the Government's general failure to comply with open records laws is, in circular fashion, contributing to a loss of confidence in the Government, according to some Government reform activists.

In the past, Municipal and State agencies have refused to process, invoked prohibitively unreasonably high fees in order to process, or dragged out the production of records in response to, open records requests filed by Progress Queens seeking records of J-51 property tax abatement property lists, New York City Council records about the proposed Small Business Jobs Survival Act, records about special events permits for a political rally, records about the sale of a former AIDS hospice in the Lower East Side, records about water tests for lead, records about housing discrimination, and agreements governing the private sector management of public pension fund investments. In order to compel the processing of some open records requests or to draw public attention to the Government's failure to process open records requests, the publisher of Progress Queens has had to seek guidance from the New York State Committee on Open Government, commenced litigation, requested other forms of judicial intervention, made private appeals for assistance, and embarked on a liquids-only fast that was broken on the twenty-second day.

In response to a status check on several open records requests filed by Progress Queens approximately 11 months ago with the New York City Council for which the Municipal legislature has only made a partial release of records, a FOIL officer, Danielle Barbato, last week informed Progress Queens that, "I expect to provide you with a response within 10 business days," a status update she has similarly invoked in the past to explain delays in processing the open records requests.

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