One Journalist's Win is a Win For All

If you have a minute, let’s indulge in a bit of wordplay.

The word “foil” has several meanings and is also an acronym that will be relevant to this column.

In New York State, the acronym “FOIL” stands for the Freedom of Information Law, which lets citizens and journalists request access to government records and documents from municipal governments including public authorities, counties, towns, villages and school districts.

Interestingly, one definition of a “foil” is a light, flexible sword with a blunt tip used in the sport of fencing. This makes me ponder the phrase “the pen is mightier than the sword” because when journalists successfully receive FOILs they request, they use the proverbial “pen” to reveal how public officials are behaving and spending your tax dollars in ways that they do not make obvious or public.

FOILs are a literal and metaphoric weapon for truth.

Take, for example, a public authority in a small New York County that allocates $18 million to build an animal shelter. So many questions swirl around the plan, which involves overpaying for the purchase of a warehouse that will need a total conversion. It is situated in a remote location surrounded by landfills and sewer plants, not to mention it’s in a 100-year flood zone. What really makes eyebrows jump is that this bloated but secretive public authority (think Robert Moses) chooses a North Carolina contractor (all the rest were local) that is not the lowest bidder, nor has it ever built an animal shelter. Another came in less expensive, at least two had animal shelter building experience.

The news site I run, Rockland County Business Journal (RCBJ), wanted to know why this choice was made. We and the public have a right to know because this is a public entity spending taxpayer dollars. Funny enough, there’s another definition of “foil”: To prevent someone from succeeding or to defeat a plan – which is exactly what the Rockland County Solid Waste Management Authority, euphemistically renamed “Rockland Green” endeavored to do for more than 18 months as we sought documents.

In a stunning ruling in Rockland County Supreme Court this week, a judge ordered the public authority (in the name of wordplay and for those who love classic movies, we like to call it Soylent Green) to produce a trove of documents related to the bidding process for construction of the new animal shelter, while at the same time highlighting the importance of the First Amendment and the work journalists do.

Rockland Green has 30 days to hand over unredacted documents to RCBJ, and with limited exception, to the court for further review. And Rockland Green will be required to pay attorney’s fees.

The opinion, which sets an important precedent in Rockland County and beyond, comes at a time when journalists are under attack, as is the First Amendment. Citizens and journalists are too often frustrated in the FOIL process with Rockland Green, as well as municipalities including the Rockland County government, towns, villages and school districts.

These public entities are not unique in the way they give journalists and citizens who file FOILs a cat-and-mouse runaround, but the mentality at Rockland Green is particularly egregious because the public entity’s chairman thinks denigrating the press Trump-style, calling it fake news, and hurtling ad hominem insults at reporters, wallpapers over profligate spending and questionable governance. Public entities like Rockland Green are once removed from voters’ ire because even though the board of Rockland Green is made up of Rockland’s five town supervisors, two village mayors, a handful of county legislators, and a county representative, voters don’t necessarily know this, nor do they punish these public officials when they elect or re-elect them to run their towns or the county.

Perhaps they should.

Rockland Green is a $90 million public authority that frustrates FOIL requests and uses taxpayer money to hire outside counsel (even though they have an army of inside lawyers) to defend lawsuits. Additionally, while the FOIL lawsuit dragged on, Rockland Green moved forward with its shelter renovation, adding more than $1 million in “change orders” along the way.

This week’s win in court is for every citizen but especially every journalist who goes to work to protect the First Amendment.

In soaring and poetic language, Justice John P. Collins, Jr, wrote:

“Before turning to the particulars of this dispute, the Court pauses to observe what is truly at stake. A free press is not an ornament of democratic government; it is one of its load-bearing walls. The First Amendment’s guarantee of a free press was written into our Constitution precisely so that an independent Fourth Estate could stand between the citizenry and the government that citizenry funds, watching, questioning, and when necessary, exposing.”

In an unequivocal and scolding 15-page ruling, Collins repeatedly says Rockland Green failed to meet the burden of FOIL exemptions, and that its arguments for withholding documents were conclusory and without merit.

He cites Rockland Green’s efforts to play a protracted game with the FOIL request, including trying to charge RCBJ $450 for documents, which looked like black ink bottles had been spilled all over them, i.e., everything was redacted. He exposed fruitless efforts to invoke trade secrets, invasion of privacy, and other fabricated exemptions that might suggest someone writing those briefs was wearing a tin-FOIL hat (see how versatile this wordplay can be?). He wagged a finger at their endeavor to claim attorney-client privilege.

The order is a window into the way Rockland Green behaves – and a warning to other government entities that this kind of obfuscation has consequences. Powerhouse public authorities count on two things: that regular people and independent journalists can be worn down and defeated through frustration, and that most do not have the wherewithal to sue.

And that’s where we find another foil (promise this is the last one in the game): Michael Martin Linhorst from the Cornell Law School’s First Amendment Clinic represented RCBJ. Linhorst stands in stark contract to many local lawyers who literally said they wouldn’t touch the case for fear of angering the powers that be. Linhorst is a scholarly, meticulous attorney, versed in First Amendment Law, and who is not beholden to local politics. He works for an organization that fights for journalists and upholds integrity of the First Amendment.

In his eloquent ruling, Collins repeatedly invoked the importance of our constitutional privileges.

My very favorite line – one I will frame and hang at my desk – is: “A local journalist tracking how a public authority spends $18 million taxpayer dollars is engaged in exactly the work the First Amendment was written to protect – unglamorous, granular, and indispensable.”

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