A story that appeared in this newspaper last week, detailing the frustrations two lawyers have had trying to pry public documents out of East Hampton Town Hall, tells only part of the story. Compliance locally with New York State’s Freedom of Information and Open Meetings Laws is spotty at best, and the town is hardly the only entity with trouble keeping up.
The problem is twofold: Many officials are reluctant to let the public in on the sometimes messy business of government, and the law itself is toothless, without sanctions or fines — or any consequences whatsoever — for those who fail to meet its requirements.
Consider, for example, what would happen if speed limits were not backed up with the threat of fines. It is pretty easy to guess what the roads would be like if motorists tore around without fear of repercussion. Many public officials are like these hypothetical lead-foots, ignoring the law as they please, whether because of lethargy or indifference, or because they never bothered to inform themselves of the rules.
The Town of East Hampton appears to be the biggest offender locally when it comes to failure to respond to Freedom of Information Law, or FOIL, requests for documents. Rather than hand over copies of public records sought by lawyers, the media, or residents, or provide a valid reason why they are being withheld, officials just don’t do anything. Short of heading to court to get an injunction forcing an answer, those making requests have no recourse. The most obvious fault lies with the town’s legal department headed by John Jilnicki, which should be the agency helping provide access under the law, not hindering it.
Similarly, the state’s rules on so-called executive sessions are frequently bent, if not broken. In a guarded statement earlier this year, Robert Freeman, the head of the state’s Committee on Open Government, faulted the East Hampton Town Board for improperly meeting behind closed doors. In particular, Mr. Freeman cited a discussion of whether or not to sell some town-owned property in Montauk, which, he said, should have been conducted in public. Exemptions to the rule that all discussions are to be held in open session are strictly limited. In the case of real estate transactions, closed-door sessions are allowed only when disclosure would substantially affect the sale price.
The East Hampton Town Board is not alone, however. Until recently, the town planning board would often get together for drinks after the night’s meeting was done. If a majority were there, it was an illegal meeting no matter whether they discussed pro sports or the latest site plan applications.
School boards routinely put executive sessions onto their schedules, to be held an hour or so in advance of ordinary meetings. Not so fast, Mr. Freeman has said. Executive sessions can only be held after a public vote by a majority of a board’s members. Therefore, he said, it is impossible to schedule such sessions beforehand, not knowing what the outcome of the required vote would be. Furthermore, and as troubling, is the frequent abuse of the Open Meetings Law’s requirement that the subject of closed sessions be identified in advance and in reasonable detail (the frequently cited “personnel” excuse is not adequate).
Any correction would have to come from Albany in the form of some mechanism to assure that officials comply. Without consequences, these laws are simply too easy to ignore.