Let’s say you’re my friend, and you’re a biologist — and I’m the mayor of New York City.
I say to you, “Hey friend, what do you think we should do about this Zika virus?”
Would that make the advice that you give me completely confidential? I certainly hope not.
That’s what Mayor de Blasio is arguing in hiding the emails from five deputized “agents of the city” — a phrase his administration lifted from ex-Mayor Michael Bloomberg, who made a similar argument in his efforts to hide emails regarding the appointment of Cathie Black as his schools chancellor.
The mayor’s interpretation of Freedom of Information laws — which gives the public access to most government correspondence — involves stretching an exception to rights of access far beyond any conclusions expressed by a court.
In certain cases, FOIL does allow for government officials to shield some emails. Those cases usually involve times when it is believed some sort of harm might come from releasing the information.
For example, correspondence between government officials with other government officials isn’t released.
The theory is they should be able to communicate with a decision maker freely.
After all, all of us have made recommendations at work that might seem off the wall — and if those were made public, it might chill the willingness of people to freely offer their points of view.
Fair enough.
But de Blasio is taking that one step further in his “agents of the city” argument since none of those people actually work for the city.
He claims they advise him, and offer help as pals.
But they aren’t paid consultants, who the courts have ruled are also exempt from FOIL rules when working in an official government capacity.
The courts have twice ruled that consultants must be “retained” — key word — in order to have their emails kept private.
The mayor’s argument that his friends who are consultants should enjoy those same privileges is one I’ve never heard and one that I described as meshugas when I first heard about it.
It will likely suffer the same fate in the courts that the original “agents of the city” argument did. The courts forced Bloomberg to release the Black emails to reporters after a long court battle.
Robert Freeman is the Executive Director of the New York State Committee on Open Government
