While campaigning for office, Bill de Blasio pledged to "increase transparency with a series of reforms of the Freedom of Information Law," including adding FOIL stats to the annual Mayor's Management report, and "levy fines and penalties against city agencies that regularly duck and delay FOIL requests." Yet it appears that the de Blasio administration has ducked a litany of FOIL requests related to his handling of the arrest of a friend and political ally.
The circumstances surrounding the arrest and subsequent release of Bishop Orlando Findlayter, who was integral to rallying support for de Blasio's election among Brooklyn clergy and was a member of the mayor's inaugural committee, are well known. What is less clear is how a group of private citizens were able to send text messages to the mayor and convince him to make a midnight phone call on behalf of a friend and campaign supporter.
We know that these text messages exist because the mayor's aides told the New York Times that they did:
The mayor began receiving messages about the bishop’s arrest from members of a local Brooklyn clergy council, some of whom he had known for years.
Unsure of the specifics, Mr. de Blasio sought more information from several aides, but he did not receive an immediate response.
In February, Gothamist asked for records relating to these text messages, and records relating to any phone calls or emails that similarly concerned Bishop Findlayter's arrest, between the Office of the Mayor and Findlayter's friends and associates. On Friday, 36 business days after we filed the request, we were told they did not exist.
"A diligent search for records responsive to your request did not produce any responsive records," Ian Bassin, de Blasio's Record Access Officer wrote in an email. Other media outlets were were similarly told that there were no such records.
"I found [the claim] curious, given their past statements on the matter," says a former member of the Bloomberg administration who advised the mayor on his FOIL responses. (Bloomberg was no stranger to delay and obfuscation when it came to FOIL requests.)
"They might be playing a game where they are conducting government business on non-governmental email or another technological medium. This is a gray area that could be exploited because I think such messages are still defined as 'records' for purposes of the Freedom of Information Law," the former advisor says.
Robert Freeman, the executive director of the Committee on Open Government, confirmed that city business conducted on personal devices is subject to FOIL.
In a stroke of creative legal theory, could our request asking for records relating to "the Office of the Mayor" somehow not include the mayor himself? "Of course it would cover the mayor," Freeman says. "It would cover the mayor and everyone who works in his office."
Freeman suggested that the Mayor's Office might not keep telephone records, but the telephone companies certainly do, as anyone who receives a monthly bill and usage statement from a major carrier can attest. It also seems implausible that no emails were exchanged between the mayor and Findlayter in the days following his arrest. Both the mayor and the bishop cancelled press conferences during the ensuing controversy.
The mayor's press office did not respond to our request for comment. According to a transcript provided by the Mayor's Office, de Blasio was asked about the FOIL issue today, and responded:
The FOIL process—I am not a lawyer, but the FOIL process is delineated and is pursued whenever a request comes in. What we have said to our team is: Process those, get the answer back. Obviously, if at any point, a journalist or any other organization isn’t comfortable with the outcome of the FOIL request, there is an appeals process. So I’m not familiar with the details of it, but that’s the way it works.
"My hope and expectation is that FOIL will be treated more seriously under this administration, and I think that we will see it," Freeman says. "There has to be a change in culture and attitude in some agencies—when he was Public Advocate, the mayor released an FOI audit of city agencies."
The report, entitled Breaking Through Bureaucracy [PDF], did not include requests made to the Office of the Mayor.
You can read our FOIL request and the response from the Mayor's Office below.