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Case study of how the Water Authority broke transparency laws

Among the many faults that a state oversight agency laid at the feet of current and former Erie County Water Authority leaders was the improper handling of Freedom of Information Law requests.

They ignored them, delayed responses, provided less information than required, censored information that was public, and improperly denied appeals, the Authorities Budget Office said in a report.

"The Erie County Water Authority has been very, very difficult to deal with," said Investigative Post Editor Jim Heaney. "They're evasive, they're nonresponsive, and they appear to have great contempt for the public's right to know."

The Water Authority even repeatedly denied FOIL request information sought by the Authorities Budget Office, the state agency with direct oversight over it, resulting in harsh criticism by the ABO.

This is not a surprise to organizations that have regularly sought information from the agency. Consider the following case.

When the Water Authority board approved the "emergency" spending of public money for an undisclosed matter in December 2016, The Buffalo News filed Freedom of Information Law requests and appeals to determine how much was spent and on what.

It took four months for the Water Authority to provide records showing it had hired the Phillips Lytle law firm at a rate of $400 to $435 an hour to investigate "improper conduct by Investigative Post," after one of the organization's reporters aggressively tried to pin down authority commissioners for answers.

It took an additional four months for The News to receive heavily redacted documents showing that $129,507 was spent on this "emergency" matter and that one of the hired lawyers was vice chairman of the Erie County Republican Party.

And it has taken until now, 1 1/2 years since the board issued its emergency spending declaration, for the authority to finally provide – without black marker redactions – all requested documents related to The News' initial information request.

Compare the original, heavily redacted Phillips Lytle invoices provided to The News in August 2017 against the same invoices, unredacted, provided in May:

Redacted Phillips Lytle invoices

Unredacted Phillips Lytle invoices

The latest FOIL response and the report by the Authorities Budget Office appears to show the authority:

  • Hired Phillips Lytle to review whether Investigative Post could be successfully sued for "false reporting" and advise it how to counter claims regarding environmental concerns related to an Investigative Post report about water testing for lead. This was criticized by the ABO as a violation of procurement policies that allow for an emergency bypass of purchasing procedures only for "situations that present a danger or threat of harm to life, health, safety or the environment."
  • Initially spent between $23,000 and $30,000 to have lawyers research whether it was possible to sue the news organization, and the likelihood that the Water Authority would prevail in legal action against Investigative Post. This included attempting to fact check the news story, writing up advisory reports and researching whether the authority could sue for damages. No legal action was ever taken.
  • Hired Phillips Lytle and and allowed the firm to rack up charges weeks before the authority board formally voted to approve any "emergency" spending.
  • Had the law firm assist in a PR campaign to raise the authority's image, including having the firm review an "infomercial" developed for the authority.
  • Spent the remainder of the $129,507 bill trying to refute and address the claims by Investigative Post by having the firm work to develop a separate environmental review of water safety.

Water Authority hires lawyers at $400 an hour but won't say why

Margaret Murphy, one of the authority's staff lawyers, acknowledged that authority leaders were initially "pretty angry" at Investigative Post reporter Dan Telvock for his report raising questions about lead in the county water supply and his aggressive reporting tactics.

"They thought the Investigative Post reporting was so injurious that people would think that the water they were drinking was dangerous," she said.

But the authority quickly switched gears and began having Phillips Lytle look at best practices for water testing and community engagement as a result of Telvock's reporting, she said.

In retrospect, she acknowledged, an emergency declaration was unnecessary, and the environmental research work done by Phillips Lytle should have been brought back to the board as a new retainer agreement that followed normal spending protocols.

This explanation was not provided to The News until recently. Instead, the authority repeatedly refused to provide information, despite a FOIL appeal and written advisory opinion from the Committee on Open Government warning that the authority appeared to be breaking laws.

The authority broadly cited attorney-client privilege as the exemption that allowed invoices from the firm to be heavily redacted. In its report, however, the Authorities Budget Office reprimanded the authority's former secretary officer, Joseph Burns, for redacting invoice information that was clearly not privileged and for withholding that information from the state agency, as well.

The information sought by The News was finally released upon request after Jerome Schad was elevated from commissioner to chairman and lawyer Mark Carney joined the board as a new commissioner in May.

Schad has said the authority will do a comprehensive review into the allegations by the ABO regarding improper handling of FOIL requests.

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