Bob Freeman is a very smart guy. A leading authority on open government law, he is the Executive Director of New York State’s Committee on Open Government, and in that role, he offers guidance to government agencies, citizen watchdogs, and members of the press.
He teaches lawyers, and students, and reporters, he gives advice to anyone who asks (including foreign governments), and he has an encyclopedic knowledge of statutes and case law concerning access to government records.
He’s authored tens of thousands of advisory opinions on what information government should make public and what information may be kept from the public.
This topic may seem a bit dull…but only before you’ve spoken with Bob. You quickly realize that there are a myriad of rather fascinating issues here regarding privacy, democracy, security, corruption, and politics.
He’s been doing this for over forty years…and he’s pretty funny once he gets going.
The recent presidential election had me thinking about government transparency, so I got in touch with Bob to see if he’d mind answering some questions. He was, as he generally is, perfectly obliging. Here’s what we talked about.
Bob Freeman Q&A
Date: December 1, 2016
What is your hometown and where do you live now?
I lived in the Boston area until I was nine, when we moved to Long Island. It was the mid-fifties, and there was bit of a language barrier, and as I was a Red Sox fan, life was rather difficult. I graduated from East Meadow High School, went on to Georgetown, then NYU for law school. My wife and I moved to the Albany area in 1973, and we’ve lived in Delmar for 38 years. It’s a great place to raise kids, and a great place for day-to-day life.
What do you consider your occupation to be? Freedom of Information Guru?
I’m an attorney for state government, and the director of a small state agency. State employees are viewed as a monolith; people think we’re all fat and lazy. I characterize myself as an idealistic government attorney.
That’s something a federal judge told me once about working in government. You usually do have the luxury to do the right thing, so you should.
That’s what I call the Spike Lee principle. Do the right thing! Fortunately for me, I’ve been given the independence to attempt to do what I think is right without infringement. The goal is to offer the right answer under the law, regardless of source of the question: if it’s a member of the public, a public employee, the news media, it doesn’t matter.
In our annual report to the governor and legislature, right at the beginning, we have the suggestion that sunlight is the best disinfectant. That’s a Louis Brandeis quote from over a hundred years ago.
I knew that the freedom of information laws were called sunshine laws but I did not realize that the quote was from Brandeis. Interesting!
When we were setting up this interview, and I asked for the best number to reach you at, you said that you’d had the same number since 1974. You are pretty easy to find, then! May I publish your number in this article?
I think I’d jokingly said in an e-mail that either it’s a great job, or I’m in the deepest rut ever created! I think it’s the former. And sure, I’ll leave publishing the number up to you.
Okay, then! [If anyone reading this wants to talk to Bob, they can call him at 518-474-2518]
So, the United States now has a president-elect who has not released his tax records, and has been rather opaque about his business interests. My understanding is that it has been a longstanding tradition, rather than a legal requirement, to be open about these matters during campaigns. Is that correct? What are your thoughts?
I think that is true. There’s never been an obligation that a candidate release tax forms. It is a tradition. If I went to the IRS and asked for yours, they would have to say no. If you had a job in New York State and I asked for them from the government, they would have to say no. In New York State, by statute, they are confidential. The W2 form you get in from your employer even says so.
But we’ve always believed (and it’s a cornerstone of our law) that public officers and employees have less privacy than everyone else. We’re supposed to be more accountable than anyone else. Ordinarily it is a given in the highest office in the nation. For what its worth, I hope that this it not a precedent. You can’t help but wonder, when the government says NO, and it flies in the face of tradition: you wonder what is being hidden. I don’t know. No one knows, that is the problem: that we don’t know. The more we disclose, the more we can appreciate the government and have confidence in our officials.
Are we looking at an incoming administration that is likely to be hostile to open government?
I would imagine that we’re looking at an administration that will be inconsistent. It is too early to judge. But responses to questions seem to be dependent upon someone’s feeling on a given day. We’ve seen conflicting responses on any number of issues, appointments that conflict with campaign statements. I would guess with respect to secrecy, personally, that we will probably see damage to FOIA (the Freedom of Information Act—the federal open government law). That’s just a guess. And Attorney General Jeff Sessions could hardly be categorized as a champion of open government, or of open-mindedness.
When I worked in New York City government, the tendency seemed to be that officials were much less concerned with releasing records that were going to prove costly, and much more concerned with releasing records that might be embarrassing.
In the Giuiliani years, I’d frequently get calls from attorneys who represented news organizations. He frequently said no.
Yes, he had some authoritarian tendencies even then. Things seemed a bit more open during the Bloomberg years.
If I remember correctly, FOIA, the US open government law, was passed largely as a reaction to the Watergate scandal with the Nixon administration, and had bi-partisan support. Do you foresee any legislative changes coming re open government at the federal level?
It seems unlikely to me, primarily because both houses will be dominated by the same political party. The history of the federal act and the New York State law is interesting. Who were the sponsors initially? Far to the right on one side, and far to the left on the other. Opposite ends of the spectrum, trying to promote change. Not those in the middle who have lost, just like in our recent election. It’s impossible to predict ,but I don’t anticipate positive changes in FOIA.
One US Senator, John Cornyn from Texas (and actually many legislative bodies are like this) is hard to figure out. There are strong proponents of certain aspects of the law, which I’d consider liberal, who are very conservative in other aspects, such as Cornyn. The leader in FOIA legislation is the Senator from Vermont, Patrick Leahy. How much power he will have remains to be seen.
Well, nothing surprises me at this point.
If nothing else, what have we learned is that we can’t predict the future. We don’t know what is coming next. Especially in the context of the most recent election. What will be tweeted next?
What are the biggest problems with the open government laws in the US, in your opinion?
Well, if we are talking about the federal act, the federal courts have rolled over for federal agencies. When an agency denies access and is sued, it has the burden of proof. In too many instances, an agency involving law enforcement withholds documents and the federal courts agree to let them withhold. A fabulous law review article came out on the “mosaic theory,” which is the notion that individual bits of data are innocuous, but, if you could put them together, you could create havoc, you could engage in terrorism. Now agencies can’t prove that this is a likelihood, just a possibility, and yet the courts have sustained that argument. There is also the Glomar principle. It’s named for a spy ship that went down in the Pacific. The federal agencies won’t tell whether they have anything but they say that if we did have any documents, we would deny access. There’s no in camera inspection, and judges let them do that.
In New York, so far, the courts have been more serious about agencies’ obligation to meet the burden of defending secrecy. Not mere speculation, but actual harm. That’s what the access to records law is supposed to be about.
The other huge issue that every agency is facing is that technology has outstripped our ability to deal with the law. In the era of paper, it was easy, you could find it or you couldn’t. The ability to locate your documents would depend on the filing system.
There’s a silly stupid example I use for that. You request a record in a government office, say you’re looking at the phone directory. You want to see all the listings with the last name of Smith. Or LaVelle. Piece of cake! No problem, it’s a valid request, and it would reasonably describe what you’re looking for. They make you a copy of all the listings of LaVelles, and you go away satisfied.
Now say you go back the next week, being so happy with the listing for all the LaVelles, and now you say that you want to see all the Lauras. Well, gee! There are lots of them in there. It’s not an uncommon name. But the agency can’t find them without going through thousands of of listings, one by one, and they just don’t maintain them by first name alphabetically. They are not required to go through the haystack to find the needle. And that’s been the view of the Court of Appeals.
But now it’s 2016, and we can find all the Lauras with a query in a database. And, we are obliged to do it. The difficulty in so many instances has involved the ability to extract thousands of records, especially in the context of emails! Can we find 9,000? If we do, someone has to read them, and it is burdensome and time consuming. The federal government and New York State, and every other state, are trying to figure out a way to effectively deal with it. No one has come up with a solution yet, but we are going to try.
So two big problems are the obligation of the government to make its case to withhold, and the technology outstripping the law. We have precise time limitations in the New York law for responding to requests. But when an agency is dealing with a voluminous request, the simple request has to stand in line, and the delays have an impact on all potential users. We’ll get back to you in 2022…
And here’s a third problem with our laws, for better or for worse: what do we do when they say no? We go to court! Well, going to court involves time, it costs money, and many people won’t do it. That’s what I often refer to as the Nancy Reagan response. Just say no! Go ahead, sue us. Make my day. Most people will not initiate a lawsuit. It’s even true with news media organizations. It takes too much time and money.
And something else: the federal courts have looked at the exception regarding personal privacy very differently from the courts in New York. In general, public employees have less privacy than others. That’s not quite true at the federal level. In New York, if you want, you can see my attendance records, my salary (it’s not that much), and if I’ve been disciplined, that’s public too. What are the qualifications for my job? That’s public, and you can see whether or not I meet the requisite criteria. Equivalent records are being withheld under the federal act, though.
I don’t know. Government can withhold records when disclosure would result in an of unwarranted invasion of personal privacy. But if there’s such a thing as unwarranted invasion of personal privacy, there must then be permissible invasions of personal privacy. That’s clear, as a public employee. People can know your salary, miniscule as it may be.
When I worked in government, occasionally I would get a cranky person on the phone yelling about something and saying that they paid my salary! (Of course, by that logic, I also paid my own salary!)
This office, the Committee on Open Government: it’s one of the few offices of its kind. We do training, we answer calls. This past year we gave 88 presentations. We’re pretty active. My belief is that there can be a great law on the books, but if there’s no one to call for confirmation, to answer a question, or to offer guidance, the law is not going to work particularly well. Reporters call here all the time, and they often know the answer. They call me for the quote. And sometimes that’s enough to encourage compliance.
If you could wave your magic wand and change something about the US legal system, what would you do?
Oh, that’s impossible to answer! But…in consideration of so much that we hear about these days, so much about we surmise about the future, it seems that we have to ensure that First Amendment rights are treated seriously. I was heartened recently by an unexpected source. Trump said that everyone who burns the flag should go to prison. But Senator Mitch McConnell said that flag burning is an element of free speech and should be protected; he said that he agreed with the Supreme Court.
We don’t know if the President-Elect will shut out the news media. Some of it relates to the Freedom of Information Act, and some of it is day-to-day activities commonly known to the media in the day-to-day work of the government. I’m concerned. Regarding the First Amendment, there have been comments made by this President-Elect that bear upon each element of it. Establishment of religion: let’s keep the Muslims out. Free exercise of religion and freedom of speech. The right to peaceably assemble, and to petition the government for redress. Some of us were beyond disappointed regarding the outcome of the election. Some of us are fearful. And so many people in this country who may not be here legally but whose kids are born here are worried: what will happen? Can 11 million people be deported? It seems that it could not possibly be so.
It would certainly be hard to do.
Just logistically, it would be exceedingly difficult, not to speak of being foolish. What ever happened to “Give us your tired, your poor”? What ever happened? I don’t understand how so many Americans forgot where they came from. We all came from somewhere (unless we’re Native American) and in many cases it was not so terribly long ago. I’m a second generation American.
So am I, on my mother’s side. My grandmother was Irish. I have roots that go back further on the other side…family trees are complicated things. But my husband is first generation. His father is from Italy.
These are difficult times. People are scared for good reason.
I think we touched on this before a bit, but what are the practical obstacles to compliance with open government laws? Expense, unfunded mandates, confusion?
I think expense is a big issue when it comes to using the law, especially when it comes to using the law on behalf of the average person.
There are other issues too, in many instances, political. Why do we have delays in disclosure? The desire for control. The need to avoid embarrassment, even though there is very little that creates lasting embarrassment.
I used to think when I worked on government that if something is so embarrassing that we don’t want to make it public, that maybe we shouldn’t be doing it.
Lots of public employees would be embarrassed to find themselves named in the press. But it’s almost all forgotten in practically no time.
Are you familiar with what I call the love letter principle?
I don’t think so.
This goes to the notion of embarrassment of government officials. Often when I speak, the crowd involves government employees and officials and I ask if people if they’ve ever received a love letter. Many have at some point, and when they do, they read it again and again, they consider every nuance and every possible meaning, and they may remember it until they die.
And what happens when a government official sees his or her name in the newspaper? They read that story like it’s a love letter. They look at it over and over again, think about how much of it was right, if there was a tone they don’t like, the reaction is–the reporter is out to get me! Well, in reality, the reporter was 27 years old, just doing his or her job, with no particular political agenda. The person who sees his or her name in print will remember it for a long time. The average reader will forget about it practically no time at all. We are so bombarded with news and information that the likelihood that something will stick is minuscule. Who was the Vice President under the first George Bush? People don’t remember. We forget. My name is in print 200 days out of the year. But only one person cares. You know who that is?
You? Or your wife?
No! I don’t care. And my wife certainly doesn’t care. It’s my mother! (All mothers are crazy.) The article’s not about me. But if I’m quoted at the bottom of article, she’ll tell me she read the article about me. I do TV interviews often, and I’m a walker, and I took the bus for years, and people stop me in the street. And they say, hey, I saw you on TV! And I ask what they think about what I said, and they tell me they don’t remember what I talked about, but that I looked good! It doesn’t mean very much.
How do you feel about non-government organizations taking on government work? I’m thinking of NYC, where I worked for years, and park administration being taken over by non-profits, and parent teacher organizations so large that they’re funding staff positions at elementary schools, and business improvement districts taking over government services in certain locations…another layer of bureaucracy. I know at least in NY State under FOIL that FOIL applies to records “kept for” an agency but in practical terms, what does that mean for open government?
Well, the federal law doesn’t define what a federal record might be. Who prepared it, what is its function? Those issues were resolved in 1978 in New York: we got lucky. Back then, high tech was an electric typewriter. There was no internet, no email. But under the law, the term “record” is defined to mean “any information in any physical form, kept or held by or for a government agency.”
Due to that provision, the records that are not in the physical custody of government often fall within the Freedom of Information Law here. Privatization is not as significant an issue here in New York as it is elsewhere. There have been scandals recently involving not for profit corporations that carry out functions for SUNY (the State University of New York). Our advice has been that an entity created by SUNY is covered by FOIL. But to attempt to ensure that it be so, we are recommending that FOIL should include an entity with a board of directors with a majority appointed by government, and any entity created by government.
So things like public authorities?
Authorities are already covered. And BIDs are covered. In the case of local development corporations: some operate right out of out of City hall, and some are more like chambers of commerce. The courts have been in agreement with us on this.
I’ve heard from you before that Mexico has an excellent open government law. What could we or should we learn from Mexico in this regard?
It’s interesting, I first met the Mexicans at a conference in Lima, Peru, right around the turn of the century. (I love to say that.) Seventy-five years of one-party rule were coming to a close, and reform-minded Mexicans were ready. They did a bang up job with a freedom of information law. I was stunned that in the first year of the law, 40,000 requests were made, and of them, 36,000 were made via email. The Mexican government put kiosks all over the country, and people tapped out their requests, sometimes one finger at a time, and they got the information they requested. They built information technology into their law. There’s an obligation that they must accept requests via e-mail when they can, and transmit records via email when they can. We (New York) were the first state in the US to pass the same kind of requirement. Another critical element: the Mexican law includes an obligation that government engage in proactive disclosure. Documents need to be posted on line. We have caught up on that, and many agencies do that, but Mexico did it by statute.
A third point: the Mexican law created an agency known as IFAI, which is the oversight agency in Mexico. It functions like the Committee on Open Government; it does training, gives advice. But, it also has the power to decide. I’ve been invited to share my knowledge in Mexico on eight occasions, regarding their federal law and also regarding their state laws. (Like the US, each of the Mexican states has its own version of open government law.) The US State Department and several of the Mexican states have asked me to share my experience. Some feared that IFAI would be under the thumb of whoever was in power, but the commissioners were serious about their function and they’ve done a great job. You don’t HAVE to go to court if you have a grievance. You can go to IFAI.
So it acts something like an Administrative Law Judge?
Yes. And their local laws are patterned on the federal act. And what so many Americans believe about Mexico is so far from the reality. Mexicans are not law- breakers or rapists. The ones I’ve met are well-educated forward-looking wonderful people. I wasn’t there as a tourist, I was there in a different capacity.
I haven’t spent much time in Mexico but I went to a wedding in Cuernavaca, a resort town outside of Mexico City, a few years ago. I was very impressed with how polite and patient everyone was considering the traffic getting in and out of town! New Yorkers aren’t nearly so patient or so polite getting to and from the airports.
They have to be patient with the traffic in Mexico City—it’s a way of life!
Does the proliferation of social media and the fracturing of the national audience worry you? When you talk of sunshine being a disinfectant, we presume that once we as a culture learn about corruption or bad practices that we will be appropriately outraged and make changes. But with the 24-hour news cycle and so much information available and fake news being so prevalent…do real scandals get ignored even when exposed? What happens if we pick up rocks and see what horrors lie beneath…and no one cares? (Or am I being too cynical?)
Terrific question. And you’re leading me to something else. I do worry about social media. It is commonplace with my kids. My daughter is a twitter queen. She gets alerts on a variety of subjects. And sometimes they present information that is simply wrong. How do we distinguish between what is true and what’s not? It’s difficult to do that. When I speak to journalism students, I tell them that we need good young journalists more than ever before. We need accurate and objective information. Any idiot can establish a blog or a website. We don’t know what is true and what is not.
I know quite a few people, many of them attorneys, who are making it a point these days to subscribe to the New York Times and the Washington Post to support good journalism. It costs money to produce good newspapers and if we don’t pay for them, they may go away.
I really like reading the Economist. It’s excellent. They don’t pull any punches. And they have a good sense of humor. I appreciate the variety there.
I love the Economist. I really appreciate that they do attempt to be global. They cover the entire world.
I was just reading an article about a section of southern Brazil…a place I didn’t know anything about.
Another thing I’m concerned about with social media is personal privacy.
On a happier topic, what is a book everyone should read?
I happen to love novels. You probably know the name Ann Patchett. She wrote Bel Canto a number of years ago.
Oh, that was the one about a hostage situation, right?
Yes, and she didn’t identify the place, but it was Lima, Peru, at least I think so. Beautiful passages: it was a love story, it was political. It had lots of elements that I found to be really fascinating. Another, and I’m generally not a Stephen King fan, was 11/22/1963. It’s fabulous. Stephen King did an immense amount of research, it’s a what if, it’s food for thought. And Philip Roth’s novels are also terrific.
What is your favorite movie?
I don’t watch a lot of movies. There is one TV show I think is really great, “This is Us.” It’s on Tuesday nights at nine. It touches on so much: race, advantage, sex, how to raise kids, even obesity. There is a great deal that you can glean from that series. I’ve been pleasantly surprised.
Can you tell us a joke?
I hear so many silly ones from my grandchildren these days. I don’t remember them. I get musical requests. Bobby (that’s what my grandchildren and my wife call me), “Shut up and dance with me!” My granddaughter, not yet five…I wash dishes and fold laundry (those are two of my jobs) and when I’m washing dishes I have the radio on. And at four and a half she says, this is one of my favorite songs: Uptown Funk! She’s amazingly cute.
If you could go back in time and do one thing over, what would it be?
I don’t know. I will say to you something I’ve said to many, many people. I don’t know anybody who is more fortunate than I am. I’ve been here at my job for 42 years. It’s a great job. I went to college in the late 60s, and there wasn’t a peace march I didn’t go to. This job is based upon idealism. Not many people in government get paid to be idealists. It’s been an amazing job. I’m going on 70, and I feel like a kid most days. Married to the same woman for 44 years, three kids, all contributing members of society, five unusually adorable grandchildren. And now we’re done paying tuition. I never made a lot of money, but I was lucky in my investments, and now we have more money then we ever dreamed of. Now we can spend. It’s okay to blow $20. Or buy expensive shoes!
No regrets…what would I have done differently? Not a lot. You don’t know where the path will lead. I was at the School of Foreign Service at Georgetown and thought I’d go into the foreign service. But there was no exam given that year, so I went to law school.
My wife and I exercise every day. We are very fortunate. We do things physically many of our peers won’t approach. One of my daughters bought a house that we can see from our house. She has two kids, ten and five, and they’ve practically grown up in our house.
Aww, that’s terrific. I hope you just keep on doing what you’ve been doing! What is the best advice you’ve been given?
It’s interesting, my first real boss was Mario Cuomo, and I go back to something we discussed from the start. You do the right thing. I remember going to him with an issue. I was looking for a car. I met someone at a convention, someone who worked for Chrysler, who could make me a deal. By law, that would not have been a conflict of interest, it wouldn’t have been a violation, in any way. I spoke with Mario Cuomo, who was then the Secretary of State. His advice was, if it doesn’t smell good, don’t do it. And I’ve lived by that advice for many years.
Most ethics laws are a crock. No one understands them, no one knows what it all means. They’ve been made to be so complex and have so many exceptions. We’ve seen in in New York that there’s not a great deal of value there.
I haven’t had much to do with the ethics people in New York State (which seem to be often reorganized and reconstituted). But in New York City, the Conflicts of Interest Board has always been great, in my experience. You call them up and you get a lawyer on the phone, someone smart and helpful. They do have a narrower focus, though; just conflicts, not all ethical matters.
Yes, and they have been consistent in staffing and perspective. They practice Mark Davies’ kind of ethics. He sets the tone. When precedents have been established, it is hard to take them away.
What’s something most people don’t know about you?
My life has been an open book for an awfully long time! I don’t know. Some people don’t know that I’m old! I don’t know to answer that. Hmm….to a lot of people, I’m a voice on the phone.
I’m pretty open. They don’t know that my wife is a psychotherapist, she keeps me in line. I get a lot of attention, but all she does is save people’s lives!
What’s the biggest risk you’ve taken in life?
You know there were a couple of risks associated with this job. Years ago, probably longer ago than you would recall, Ed Koch was running for governor of New York.
I remember that! I was a kid but I do remember that.
He was mayor of NYC. He looked like a shoe-in, initially. His opponent in the primary was Lieutenant Governor Mario Cuomo, and Lew Lehrman was the Republican in the race. Koch gave an interview to Playboy Magazine. And when he was talking about upstate voters, he said that the women wore gingham dresses, and the men drove pick up trucks.
Hmm…got some people unhappy with that, then?
And, he kept recordings of his interviews in his offices. And of about fifteen hours of interviews, they only used about two hours for the story. Gannett Newspapers sent me a request for an opinion: they wanted to gain access to the Playboy tapes. Were they covered by FOIL? Very interesting.
And what was more interesting…I attended a news media event to give a presentation, and to receive an award. The candidates were invited. Everyone had read the Playboy interview, and Cuomo turned and looked at me and said—just wait until we hear those tapes! Koch’s people were calling me, saying FOIL doesn’t apply. Playboy said they include trade secrets and they can’t be disclosed. I heard from Lehrman’s people, they said they were going to be in court the day right after the primary looking for those records.
I wrote the opinion: to the Mayor, to the City, if you have them, they are records covered by FOIL, and the trade secret exception doesn’t apply. Off the record comments with intimate personal information might fall under the personal privacy exception.
And then, an unpredicted event occurred. Mario won the primary, and everyone forgot all about the Playboy interview. No one cared! No one took it to court. But there was trepidation. Koch wasn’t known for being kind. I would have been instantly out. I don’t have a civil service job. I’ve been serving at the pleasure of seven governors.
Here’s something else most people don’t know: I retired and came back two days later. There’s a completely valid reason for that. Due to a quirk in the New York State tier 2 of the retirement system, if I’d died suddenly, my wife would get no pension. So, I retired to protect her, and came back two days later. They rehired me. My new salary is the difference between what it was and my pension. And no one will read about that in the New York Post. I’m saving the taxpayers a bunch of money this way.
Here I am, knock on wood, and I don’t see retirement coming. I don’t get it. It’s not an appealing picture to me.
Last but not least, is there anything you’d like to pitch, promote, or discuss?
There’s one issue we didn’t touch upon which I would like to bring to light…there’s an awful statute on the books. It deals with public employees who have the most power over people’s lives: Section 50-a of the New York State Civil Rights Law. It covers police and corrections officers and keeps their records confidential. If a police officer has engaged in misconduct, it is out of bounds. We have no right to know about it.
It makes no sense. They should be the most accountable, not the least. We have been pushing for an amendment or a repeal for a long time.
Lead-In Image Courtesy of dmitryshlyahov / Shutterstock.com
Laura LaVelle is an attorney and writer who lives in Connecticut, in a not quite 100-year-old house, along with her husband, two daughters, and a cockatiel.
Laura can be contacted at firstname.lastname@example.org
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* Maggie Topkis, mystery fiction publisher
* Carol Ward, Executive Director, Morris-Jumel Mansion
* Adamu Waziri, creator of children’s television program Bino and Fino
* Ekow Yankah, law professor