The Empire State's approach to government transparency can be described as the opposite of excelsior. Backroom budget deals in Albany result in a "big ugly" glut of legislation, and the state agency overseeing ethics has been eerily silent on some of the biggest scandals to rock the capitol. Crucially, New Yorkers struggle to obtain basic information that is supposed to be available to them under the state's Freedom of Information Law (FOIL).
According to the good government group Reinvent Albany, the state's FOIL system is "broken." The law states that government agencies are required to turn over documents within 20 days, but it is common for them to take 9 months to a year (or longer) to produce documents that address rudimentary FOIL requests.
The delays can partly be blamed on the overwhelming demand for information. Each agency is responsible for answering its own records requests, and around 200,000 are filed each year, 60,000 of them directed to agencies in New York City (only around 2 percent of those requests come from journalists). But in some cases, sensitive information is blithely withheld for no good reason. Government agencies can be compelled by a court order to turn over this public information, but it takes precious time and money to pry it loose. (Former mayor Michael Bloomberg spent more than two years and tens of thousands of taxpayer dollars fighting the release of some emails related to his ill-fated hiring of magazine executive Cathie Black to be Schools Chancellor.)
From 1976 until last June, Robert Freeman headed up the state's Committee on Open Government (COOG), a tiny agency housed within the Department of State that has a unique role of educating New Yorkers about government transparency (including FOIL and open meetings law) and offering its opinions on what should be public. Freeman was considered an international expert on government transparency, and acted as a valuable and outspoken source for journalists hoping to hold government entities to account. Freeman was fired in June after a journalist accused him of sexually assaulting her at a diner. A subsequent report filed by the state Inspector General confirmed the reporter's account, and concluded that Freeman used his unusual status and power to prey on government employees and journalists for years.
In early January, Governor Andrew Cuomo selected Shoshanah Bewlay to become COOG's new executive director. Bewlay had recently been the top lawyer at the state's Office of Information Technology Services, and also spent seven years working in the Attorney General's office, which overlapped with Cuomo's tenure as AG. This part of Bewlay's resume—and the lack of transparency leading up to her hiring—prompted some journalists to question her independence.
Last week, we sat down with Bewlay in Albany to talk about her goals for COOG, what she thinks can be done to fix FOIL, and what it means to be an independent advocate for transparency.
Can you describe how the Committee on Open Government works? And what is your role in the larger structure?
Sure. For a lot of time, it was—the committee doesn't operate by bylaws, I’ve found. So one of the things that I'm going to do is discuss with the members of the committee the adoption of some bylaws so that we can standardize and render more transparent the functioning operations of the committee for stakeholders such as media, the public government, and others. Local governments especially. Because the committee's meetings are subject to the Open Meetings law, they are open, and people can participate and learn what the agenda of the committee is through those meetings.
But in the past, I've come to understand, the meetings have only occurred at the very statutory minimum of two per year. We're going to increase the number of meetings that we hold, they're going to become more regular. We're going to interpose hopefully, you know, with the acceptance of the committee members, some bylaws. My understanding of how the committee works is I am the executive director, and I'm staff. We have a very small staff who support the administration of the Committee on Open Government.
How small are we talking?
Right now it's three.
Three people.
Three people. But I'm happy to report that we have posted for a law clerk position and that posting just closed on Friday. So I'm anxious to review the resumes of candidates to come in and help support the functioning of the committee.
For a long time, the committee spoke with just a single voice and a powerful voice—a learned voice for sure. But in order to receive advice from the committee, you had to go through a specific pathway. And I think that the mission of the committee is transparency. And the mission of the committee and my role on the committee is to practice what we preach. And so part of what I'm going to do is use the very small resources that we have at our disposal to render the advice and guidance that we give and have given over the last 40 plus years—more accessible to the public. And by that I mean legally accessible, as well as physically accessible.
How did your position at the Office of Information Technology Services prepare you for this role?
I think one of the things that made me attractive to the committee members was my familiarity with emerging technologies, especially as they relate to how to find data in both structured and unstructured environments. And being at ITS where I was fully familiar with and kind of immersed in building technology to secure the state's data from cyberattacks and other kinds of outside infiltration, gave me a lot of experience and exposure to ways to manage, find, and secure, and ensure the completeness of various data sets. I'm very familiar with how state data is managed.
One of the reporters who said that Bob Freeman harassed her wrote an op/ed in the Daily News shortly after he was fired, and she said that one of the reasons why she didn’t push back against him was that she and other reporters “couldn’t afford” to lose such a prominent advocate for transparency. What does that say about government transparency in New York that this was a concern for her?
I think it says awful things about that aspect of this important committee. I obviously have no personal knowledge of what came before me. I was fully engaged in other aspects of our government before I came to take this position just a month ago. But, one of the things that’s important to me is to make it clear, and I feel like I’ve been trying even through some of the rockier editorials written about me coming here, without anyone knowing who I was or what I was about, is that this isn’t a job about a person. This is a job about a mission, it’s a job about ensuring that appropriate, legislative-intended openness to government records occurs. And it’s important that there be experts and specialists with superior knowledge of and focus on these topics legally, but it is not critical that a single person be the single expert.
My philosophy of management has always been that if I were to win the lottery tomorrow, those people who work with and around me should be able adequately to discharge all the duties I just charged in the same way and that we are all in some measure, replaceable. But we’re only replaceable if we do a good job making it clear to the people who work around us or with us that that is the expectation.
How do you do that with a staff of three? Do you think New York State’s FOIL obligations and the committee’s obligations can be adequately met with that size of staff? With four people?
Well, we’re going to give it our very best shot and I have certain support. The administration is behind an effort now called “Open FOIL,” I’m not sure if you’re aware of it, but it is a state-wide FOIL portal. There’s been significant focus on easing what Reinvent Albany has called the burden of just processing the FOIL requests. Never mind what the agency will say about the FOIL disclosability of the document that you’re looking for. If they can’t even get to review your request and process it in a reasonable time because of the extraordinary obligations and volumes of FOIL, then we’re nowhere. So, as far as the operational accessibility of FOIL, of getting the FOIL requests processed and understanding what are frequently FOIL’d documents and what can be made permanently public. By a little bit of data analysis spread across all of the FOILs that all of the agencies are getting, using the tool that’s being developed, can we predict what people are going to need and want to see and obviate the need for making a formal request for it and just make it available?
That kind of, I’ll call it “algorithmic help,” that kind of systematic help that’s non-manual, will help with what I have to do. A lot of time just in the short period of time that I’ve been here is responding to frustrations about how long FOILs take. It’s more about how long is this going to take to get and how come the agency keeps telling me more and more time, and less about what they are ultimately are given in response to their FOIL request.
The governor announced that Open FOIL New York plan in 2018, and the other half of the rollout was having the technology given to all state agencies, city agencies. Has that happened?
Yeah, we are rolling right ahead. Many, many agencies, dozens of agencies have the technology now and since I knew about Open FOIL in the context of my role at ITS, I know a lot about it from that perspective and it’s important to me that I continue the partnership here and push forward, because I think it’s low-hanging fruit. Based on the percentages of complaints if you will, that we’re getting from constituents here at the Committee for Open Government about FOIL, the lion’s share do focus on how long it’s taking, so I think this will help and I do think we’re going to continue to push it.
Do you have a ballpark date when everyone is supposed to have that?
I don’t want to get ahead of the administration. What I would say is stay tuned, because I don’t think you’ll be waiting too long for the next announcement.
What do you think is causing the FOIL delays and how can the committee address the delay issues specifically?
What in my mind is generating delay? Obviously volume, resource constraint on the agency side is going to drive some of that. But anything that is non-standard is going to require manual input to make standard or to normalize into a flow. So if you get a letter from someone and it’s a paper letter, and you have to enter it into a system and then start the workflow, any workflow system or application is going to lessen that burden. It’s going to require fewer people to process. So that’s just sorta one thing that can be helped by a system, whether it’s Open FOIL or any system that people manage.
How the committee can help is, I think by appointing me. I have this background in technology. I think they recognize that they’re going to take it seriously, ways to make things more efficient and standardized and hopefully turn those frequently FOILed documents around.
A lot of people are interested in a big contract award. So if we can anticipate that that’s going to be the case, then we can work on it once. And then make it public so people can access it. And if they have problems with what pieces of it are not there, then they can have individual interactions with agencies to talk about what pieces they may want that aren’t there.
To use that example—the incentive package offered to Amazon, Andy Byford’s resignation letter—those "popular" requests are often held up by political appointees. How do you talk with those agencies to say, “Look you can review these materials for legal purposes but you just can’t sit on them”? What can you do about that problem? Politicians don’t want these documents to be released.
They don’t. And you know, the bottom line is, if it’s a public document and if it’s a document that the legislature in its wisdom has decided that pursuant to law is disclosable under FOIL, it’s disclosable under FOIL. The mechanism for enforcing that disclosure is unfortunately not me, it’s the court. That’s a process that’s expensive and time consuming and cumbersome. And there’s been legislation recently to make that less cumbersome and more efficient and speedy.
My role is advisory. I can’t investigate anyone. I can’t enforce anything. But I can attempt to persuade and I will do that. I will continue to, where it makes sense to do so, where it’s legally appropriate for me to do so, push until people recognize that their obligation—it’s there regardless of how long they try to hide from it. But I can’t be the whip. I think part of my job will be to make it more understandable, make it more clear to people what the options are. And if you are told that there are three ways to go and two of them are exhausted, you only have the one door.
Courts have cited the committee's decisions, its opinions, and hopefully they’ll cite them more as we make the decisions and the opinions easier to find and that’s sort of what I was alluding to earlier. You can go to the website of the Committee on Open Government right now, it contains an index of opinions that some people really love but when you click on a topic and it gives you a series of numbers that you can click on, and some of them are not hyperlinked and then you don’t know what those opinions say and you have to call and find out what they say. Another piece of low-hanging fruit that I intend to pluck is I’m going to do away with that method. I’d like to make it much more accessible.
Are there other low-hanging pieces of fruit that you’d like to pluck? What other kind of public-facing work do you plan on doing? What about training the public to use FOIL?
The way we’ve done trainings, we being the committee—and I say that being here for a month almost to the day—has been I would say, reactive training. We get a request from a group and we go out and speak and it would be Bob or whoever speaking and sort of opining on topics of our own choosing.
What I am going to ask our assistant director to do is to head up a proactive training program that’s region-based. The committee will be in Rochester at the following three meetings of local government, media, press associations, editorial boards, we will be at these events and you’re welcome to come. And then we’ll be providing FOIL open meetings, training in conjunction with clerks of courts or annual meetings with clerks of towns. And try and get on people’s agendas where our training can be part of an integrated day where people are already gathered. Less reactive and more proactive. I feel that that’s easy to accomplish too and easier than being reactive.
Of course we’ll still go out and go as requested across New York to speak at places that want us to speak and I’m already committed to several. But I feel like we owe our stakeholders more, a better opportunity to come and meet us or ask questions live or we can always use webinars, that we didn’t do so much in the past but we’re obviously going to do more of in the future. You know, we’re not a big group.
What’s high-hanging fruit? What’s a tougher goal you’d like to accomplish in the long run?
To be honest, I’ve been so focused on what I can accomplish over a time horizon that is relevant to people’s expectations—we haven’t had a change in 43 years so we’re going to have one now. But, I think along with the way, I’m planning on standardizing the way the committee meets and operates and functions, I’d like to see more of an organized, legislative integration and legislative effort. That’s harder. It’s easy to react to legislation that exists and to comment on pieces of amendments to bills or one house’s or one legislator’s bill, but it’s harder to develop meaningful legislation and propose it in an organized way and sort of build those relationships where you can work toward additional openness. That takes staff, that takes knowledge, that takes relationships. So I would say that’s higher on the tree but definitely a goal.
You mentioned the stories that came out after your appointment—do you want to respond to them? The Times Union mentioned that when they asked you for your previous FOIL advisory opinions, they were told they’d have to FOIL for them. Their headline was, “State's new 'open government' expert was hired in secret.” That’s cheeky, but I think it displays a healthy skepticism given the history of government transparency in New York.
The truth of the matter is I no longer had access to my materials when I moved from ITS to here so I didn’t have them to give. As soon as they were able to collect them, they provided them and I think that that’s the appropriate way to request records of government; FOIL. And cheeky or not cheeky, you know, we eat our own dog food. This is how we have to operate. I think COOG is in a unique position, but we have a FOIL office and we get FOILs and we respond to them. The Times-Union had asked for them from ITS as well. They got them from everywhere. Frankly there were very view FOIL appeals, they were issued.
With respect to how I was hired, my involvement in the process was as a candidate. I don’t think the Times Union printed what the Department of State said about the process, for whatever reason, its journalistic choices. I agree that the skepticism is healthy. I came from the administration so there is going to be some judgement that is hard to withhold based on that fact. But give a person a chance. At the time those editorials were printed I hadn’t been here a week, I hadn’t issued a single opinion, I hadn’t even found the bathroom. I think my job will be to discharge my obligation with integrity, without prejudice, without predisposition. I don’t think I’ll have any trouble doing that. Independence is not just a notion, it’s something that is a requirement, and because it is a requirement—I’m a licensed attorney, I will lose my law license if I don’t discharge my role with integrity, and I will do so. That is the only response I can really give. I have nothing to hide. Anyone who came into this role with something to hide would be crazy.
I guess the last guy, you know, I can’t speak to why that happened. I think we can just be hopeful about the future. I am not taking this role with the idea of getting famous, that was the last thing I wanted. You’re the first sit down interview I’ve done. Not anxious to do tons of them. I don’t think it’s about me. But I understand the questions.
What do I want to do? Well here’s what I want to do. How I got here? What my history at another agency is when I had a different obligation and a different independence role is sort of not relevant to what I’m now here to do. And somebody thought I could do it. Hopefully I can.
This interview has been edited and condensed.
