Mayor's 'Agents of the City' FOIL Exemption Stirs Debate
A state open government watchdog has panned what he called a "ridiculous" determination by the administration of New York City Mayor Bill de Blasio that certain communications with "agents of the city" who are not employees are exempt from Freedom of Information Law disclosure.
Last week, local news channel NY1 reported the de Blasio administration had denied its FOIL request for emails between the mayor, top members of his staff and Jonathan Rosen, a principal and co-founder of the public relations firm BerlinRosen. When de Blasio was asked about the denied request during the off-topic portion of a May 18 news conference, his counsel, Maya Wiley, stepped in to tell reporters that FOIL allowed for disclosure exemptions "between the city and itself and its agents. And in certain circumstances there are folks who are not city employees but are acting as agents of the city." De Blasio then added that Rosen was "someone who I have consulted with for years and years, and we made a legal determination that was a category that was different and appropriate. It's just as simple as that." Robert Freeman, executive director of the Committee on Open Government within the New York State Department of State, said in an interview with the Law Journal he had never heard of the "agent of the city" label until press coverage of the matter last week. "I think it's ridiculous," he said. "In my opinion, 'agents of the city' goes far beyond the intent of FOIL, the language of the law and common sense," he said, adding that the label was "inconsistent with the thrust of judicial decisions, which use the word 'retained'." Likewise, Dick Dadey, executive director of Citizens Union, told the Associated Press, "It's disappointing to see the mayor rely on a novel legal definition to defend the creation of a shadow government that is nothing more than an outside political operation." Rosen, who advised de Blasio during his bid for mayor in 2013, was a part of a now-shuttered nonprofit group that advanced the mayor's agenda. His firm represents clients to the media, some of whom have business with the city. Rosen declined to comment. De Blasio's administration has since bestowed the title of agent of the city to other longtime advisers: John Del Cecato, a political consultant and ad producer; Bill Hyers and Nicholas Baldick, consultants who steered the 2013 campaign; and Patrick Gaspard, a close friend who is U.S. ambassador to South Africa. The agents were not paid by the city but, with the exception of Gaspard, represent firms that received payment from de Blasio's political nonprofit, the Campaign for One New York. Though a public agency's records are presumptively public under the Freedom of Information Law, as codified in the Public Officers Law, the statute does make a number of exceptions. Some of the included exemptions pertain to inter-agency and intra-agency communications in certain circumstances. According to Freeman, case law on when a consultant's communications are exempt, generally an intra-agency communication, pertained to whether there was a retainer—"ordinarily signifying a formal relationship which involves payment," Freeman added. Freeman pointed to Xerox v. Town of Webster, 65 NY2d 131, a 1985 Court of Appeals decision that said materials a consulting firm prepared for the Rochester-area municipality in connection to a possible property revaluation were shielded from disclosure. The Xerox court said, "it would make little sense to protect the deliberative process when such reports are prepared by agency employees yet deny this protection when reports are prepared for the same purpose by outside consultants retained by agencies." Without some sort of payment or retainer, Freeman said "the agent of the city" label could be extended without constraint. Though the open government committee had not been asked to issue an opinion on the "agent of the city" issue, Freeman said the committee has written on this kind of issue in the past and said consultants have to be retained for exemption. During the news conference, Wiley was asked what the legal precedent was for the agent of the city label. Wiley said at the mayor's news conference that the offering of advice "would not necessarily transform you into an agent." It was not the case, said Wiley, "that anybody in communication with us who we have a relationship with is necessarily covered by the exemption." It was "very narrow," said Wiley. She also noted that if there was a communication with Rosen "that is not about his relationship to advising the mayor or the city on city business" it was subject to disclosure. De Blasio said "every administration" hired brought two kinds of people: "the people that came into government and the people who were very central but not in government … outside advisors, close confidants of the mayor, people who have often been a part of their work along the way to becoming mayor." The mayor added there were "a handful of people who have been advisors of mine for years and were so consistently sought in terms of their knowledge and input that we thought they absolutely legally and appropriately were in a different kind of category." The attempt to shield the correspondence is not unprecedented. De Blasio's predecessor, Michael Bloomberg, attempted to block the release of emails between the city and Cathie Black before she took office as schools chancellor. The Bloomberg administration argued Black was working as an agent of the city, but the Appellate Division, First Department, disagreed and ordered the emails released. The city said in court papers that it correctly invoked the intra-agency exemption to shield records on the deliberative process "involved in promoting the smooth transition of executive power."
In a 2012 unsigned decision, the First Department said Black "was not an agent of the city since she had not yet been retained as Chancellor. Further, Black was not acting simply as an outside consultant on behalf of the city, but was a private citizen with interests that may have diverged from those of the city." Elizabeth Wolstein, a partner at Schlam Stone & Dolan, was one of the attorneys who represented Sergio Hernandez, then reporting for the Village Voice in the suit on Black's emails.
Asked about the relevance of her case to the current dispute, Wolstein said, "if those people are designated an agent and not retained and not acting on behalf of the city, I think it's on point." City Hall spokespeople did not respond to a reque