Nassau County and its police department were held in contempt of court this month for ignoring an order from a panel of appellate judges to hand over a document it has spent four years fighting to keep secret.
The closely guarded document? The police department’s phone directory.
The battle over the office directory, which contains only work numbers and government email addresses, started as a records request by a Gothamist reporter in 2020. Nassau argued turning over the directory was an invasion of privacy. The county’s legal bill is estimated to cost taxpayers at least $100,000, according to the attorneys who brought the case.
The protracted legal battle over the directory reflects the length to which some government agencies in New York will go to keep even mundane public records hidden. Like the federal government, states like New York and New Jersey have legal requirements that most government records be available to the public who elects and funds those governments, though New Jersey is close to scaling back their law.
A spokesperson for Police Commissioner Patrick Ryder, named in the judge’s contempt order, did not respond to messages seeking comment. The department has been fined in the past for withholding records.
The Nassau Police Department assigned three government lawyers to appear in front of a total of six judges as the case plodded through the county court and state appellate court.
The phone directory case also reflects the limit of New York’s Freedom of Information Law, often called FOIL, which allows people to ask government agencies for records and is considered a staple of open government in American democracy.
If a property owner feels they’ve been treated unfairly by a town in a given decision, they have the right to request records detailing how that decision was reached. If someone feels the police violated their civil rights, they have a right to request police records about their interactions. And if a journalist believes they have found corruption or waste, they have the right to examine the government's books.
Despite multiple court orders, Nassau has yet to turn over the directory, nor did the county even acknowledge or respond to the civil contempt motion.
“It's an admonition or declaration of not following the law, which our whole American society is really based on,” said Joseph Aron, one of the attorneys arguing the case against Nassau. “If you can't get a phone directory from the police department, just imagine when you need an arrest report. ”The department, which has been fined in the past for withholding records, declined to comment.
According to Nassau Supreme Court judge Dawn Jimenez’s order, the county and department were called into contempt “based upon their failure to comply with the Appellate Division’s decision and order.”
“FOIL is the only thing we have to see what our elected officials are doing,” Aron said. “Do you want your government to have checks and balances? Do you want them to have to answer for things?”
Whatever limits exist for New York’s records laws, in New Jersey, the Democratic state Legislature is trying to limit them further.
Lawmakers just approved the biggest rollback in government transparency since that state’s Open Public Records Act was enacted 20 years ago.
Currently, in New Jersey and New York, if an agency denies a public records request and the requestor takes them to court and wins, that agency is responsible for the plaintiff’s legal fees. Under the new measure, awaiting New Jersey Gov. Phil Murphy’s signature or veto, those agencies will not necessarily be responsible for those fees. Journalists and transparency advocates say that, among other things in the bill, will have a chilling effect on residents and smaller news organizations who can’t afford to fund lawsuits against government agencies.
In Albany, there are currently four transparency bills pending that would make government agencies less inclined to withhold records. One bill would make it easier to recoup legal fees if going to court was the only way to obtain public records.
“Right now, agencies are more likely to take a chance and gamble in court that even if they have to turn records over, maybe a judge won't force them to pay the fees,” Rachel Faus, policy adviser for Reinvent Albany, a group advocating for government accountability, said in a phone interview. “Passing this bill makes it much more mandatory for fees to be paid. It creates a bigger cost for the agencies, and it will make sure that the public is more likely to get the records in the first place.”
This legislation passed the state Senate last year and is expected to pass again this year. It was not taken up by the full Assembly last year and it’s unclear if it will move out of the government operations committee this year.
Assemblymember John McDonald of Albany, who chairs the government operations committee, said there is too much-proposed legislation to prioritize all of it. He couldn’t commit to making the legal fees legislation a priority this year.
“Does this bill, the way it's drafted, accomplish the goal?” McDonald asked. “Does it really encourage the FOIL officers to respond in a timely manner knowing that there may be a financial penalty hanging over its head?”
The bill’s sponsor, Assemblymember Phil Steck of Schenectady, said he modeled his bill on federal fee-shifting proposals. Aron said the legislation will make it more likely lawyers will take cases from taxpayers wrongly denied records.
“What this change would do is when you're confident, or an attorney's confident, that the record should have been given, it gives them the ability to fight for your rights,” he said.