Public officials are infamous for hiding behind ruses, trickery and downright illegality to avoid providing legitimately requested information under freedom of information laws—but rarely are they punished for doing so.
This case came about as the result of a political squabble between Saratoga Springs Commissioner of Accounts Dillon Moran and the city’s Republican Committee Chair Michael Brandi.
Moran made the foolish error of signing notarized certificates stating that those same documents did not exist.
Brandi filed five requests under New York’s FOIL, and while Moran delivered on 200 documents, he held some back, stating he found Brandi’s requests “annoying.”
Further, he used a second phone and told former city FOIL officer Robin McFee that he “didn’t have time to take care of it” and “wasn’t going to take care of it unless he was ordered.”
“My personal phone is not FOIL-able,” he added.
But as McFee and Saratoga Springs City Court Judge Jeffrey Wait noted, it certainly is if messages on that phone involved discussions of city business—and they did.
Judge Wait stated: “The evidence shows that [Moran] was told by the city’s Freedom of Information officer and by the assistant city attorney that text messages concerning city business are subject to disclosure and that this was true even if they were [on a] personal device.”
Brandi had, by then, obtained or been told about the documents he requested from other sources, but Moran made the foolish error of signing notarized certificates stating that those same documents did not exist.
Moran’s friend, Robert Millis, testified he was given a second phone number to contact Moran, as Millis wished to speak to Moran without anyone “knowing his business.”
“This is the non-FOIL-able personal phone. Feel free to use it,” Moran texted.
“When an elected official lies under oath, conceals records and even threatens residents for asking questions, he is not just breaking the law—he is attacking the very principle of open government,” Brandi said. “FOIL is about protecting the people’s right to know. Moran trampled that right, and Saratoga Springs deserves far better from its leaders.”
Freedom has repeatedly exposed the various forms of trickery used to stymie citizen attempts to discover what their government is up to.
These vary from “slowrolling” requests (taking so long to answer them that requesters just give up); sending “glomar” responses (stating they can “neither confirm nor deny” the existence of the information sought); charging outrageously high sums for looking up information, or using computer techies to “disappear” phone, email and messages before anyone can demand to see them under government transparency laws.
Judge Wait, in penalizing Moran with a $660 fine, stated: “I first find that the evidence is sufficient to demonstrate that the text messages in question were subject to disclosure under the Freedom of Information Law. I also find that Commissioner Moran knew this.”
Moran was also censured by the Saratoga Springs City Council, which asked Governor Kathy Hochul to investigate Moran’s misconduct.
“There’s no excuse for lying, obstructing or concealing records that the public has the right to see.”
Moran’s attorney, Ben Hill, commented on the rarity of the verdict, stating: “This is a prosecution that has never been brought before.”
Hill added: “This is a very unique case. To my knowledge this provision, this section of the penal law, which is also found in the Freedom of Information Law, has never been used as it is being used here which is to prosecute someone criminally.”
Right. That’s precisely why bureaucrats can afford to take such a cavalier attitude toward abiding by freedom of information law: If they don’t, they usually get away with it.
This time, they didn’t.
Brandi stated that he suggested prosecution because: “I thought [Moran] was violating the law. He was obstructing my right to FOIL.”
Saratoga Springs’ sheriff, prosecutor and judge have taken a stand at a time when few others do. The point is that freedom of information acts are not mere “suggestions”—they are binding statutes. Bureaucrats who do not follow and obey them are doing something much worse than not doing their jobs: They are breaking the law and, like Moran, should face the consequences.
“I would like to see a resolution that makes clear to … public officials across the state that public information is public information,” said Brandi. “And regardless of the requester and your animus or reasons to not like the requester, you have a job to do under the law and you have to do it. There’s no excuse for lying, obstructing or concealing records that the public has the right to see.”
While referring to the government of Saratoga Springs as a “retributive circus,” the editorial board of Times Union wrote that: “FOIL violations are rarely investigated by police, as this one was. It is also uncommon for public officials to be charged with unlawful prevention of public access to records.”
For that reason, the case could be a turning point, prompting government representatives to realize that unless they properly represent the citizens they work for, they will pay a price—perhaps a steep one—for ignoring them and violating the law.
It’s no minor matter. As Scientology Founder L. Ron Hubbard wrote: “Democracy depends exclusively on the informedness of the individual citizen.”
