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N.Y. agency must stop tipping off subjects of record search

By The Associated Press
05.22.05

ALBANY, N.Y. — A court has ordered a state agency to end its 30-year practice of allowing the subjects of Freedom of Information Law requests to help decide which public records should be released.

The state Racing and Wagering Board's policy of allowing entities such as the New York Racing Association to prescreen requests made under the state's FOI law dates to 1975. That's the era in which FOI laws were created amid post-Watergate measures to force greater access and oversight by the public of government and the industries it regulates.

The Racing and Wagering Board repealed the rule on May 18, effective in coming weeks, said board Assistant Counsel Mark Stuart. But he said the board stopped the prescreening last year after a state Supreme Court judge struck the practice down.

In that case, the Daily Racing Form newspaper in 2002 sought records under FOIL regarding Catskill Regional Off-Track Betting Corp., a public agency. The case involved rigged bets placed by three fraternity brothers on Catskill OTB telephone accounts that resulted in a fraudulent winning ticket on a $3.1 million Pick Six bet, according to the court decision, dated Oct. 31, 2003. Stuart had previously said the case involved the New York Racing Association.

The news organization sought board members' names, executive salaries, annual reports, contracts and any reports of criminal or regulatory investigations as well as other financial data, according to the court decision. The board turned the request over to Catskill OTB, effectively tipping off New York's horseracing overseer to the newspaper's investigation.

"I'm stunned," said Blair Horner of the New York Public Interest Research Group. "I think it opens up a deeper series of questions as to what antics are going on in the executive branch that we don't know about."

He said government must adhere not just to the letter of open-government laws but also to their spirit.

"Obviously it's not Gov. Pataki's fault the agency is operating this way, but clearly there needs to be a review of the FOIL practices of the executive branch," Horner said. "The Pataki administration has been regularly criticized for its FOIL practices and maybe this will be a wake-up call where the governor demands a top-to-bottom review of its FOIL practices."

Pataki spokesman Kevin Quinn said he saw no need for a review because the policy clearly predated the governor's tenure. "We're always encouraging agencies to fully comply with the law," Quinn said.

"It shows passing a law is only part of it — it's how it gets implemented," said Rachel Leon of the government watchdog group Common Cause-New York.

The 2003 decision by state Supreme Court Justice Saralee Evans in Manhattan stated in part:

"The Racing Board's practice of notifying every entity it supervises of a FOIL request for records and arranging a prior review and screening of the board's proposed response, is in direct conflict with the Public Officers' Law and so delays production of records that it vitiates the public access right it is intended to implement."

The judge said the state board delayed the request for five months and refused to release some records after the Catskill OTB attorney said they should be withheld form the Racing Form. In addition, the judge again had to order the board to release the records as recently as 2004.

The newspaper got its story and a measure of satisfaction for the delays it faced.

"We just wanted to do a story after the Pick Six scandal," said Rich Rosenbush, editor in chief of the Daily Racing Form. "We're very grateful that the board has changed its rule. We think it's a move in the right direction."

Stuart said he didn't know how many FOIL requests were rejected or how many public records were redacted because of objections and concerns raised by the targets of the FOIL requests. He said the issue had also been contested over FOIL requests made several years ago regarding the Capital Regional Off-Track Betting Corp., which was also the subject of state and news investigations about lavish spending and poor revenue returns to the state.

"We felt the rule served a purpose by bringing the subjects into the process," Stuart said. For example, he said the subject provided the board with expertise on what could be considered a trade secret and therefore properly kept from the public. The input would help the board "understand the value of the information being released."


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