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Water Authority addresses 'bad' record of handling FOIL requests

An internal audit on how the Erie County Water Authority dealt with public information requests found the agency improperly handled 42 percent of those it received in 2016.

Last year,  the authority mishandled 18 percent of the Freedom of Information Law requests.

"I think the findings confirm the suspicion that the oversight of simple fundamentals was bad," said authority Chairman Jerome Schad. "There wasn’t a step-by-step protocol followed. I think this is the kind of business failure that’s easily curable, and frankly, I think that’s where we are."

In recent months, the authority has taken steps to prevent any more violations, including adopting a new policy and procedures for future requests and becoming more accountable to safeguard the public's right to know.

The audit by the Water Authority's lead staff attorney came after a scathing report by the state's Authorities Budget Office in June. The report blasted the agency for repeated transparency and governance failures. Among the findings, the state office found the authority repeatedly failed to take proper action with FOIL requests – in some cases ignoring requests – and improperly withheld information.

The internal audit found the authority:

  • Repeatedly failed to properly respond to FOIL requests made by local TV news station, The Buffalo News, law firms, private companies and the public;
  • Routinely responded to information requests later than the law requires, responded with incomplete information or, in multiple instances, did not respond at all;
  • Denied all four FOIL appeals made to the commissioners by The Buffalo News, Investigative Post and a law firm;
  • Received 64 FOIL requests in 2016 and 2017 and failed to properly address 20 of them;
  • Significantly improved its handling of requests in 2017. Of five requests that technically failed to meet legal requirements, three of the violations were minor and information was provided.

The authority began the internal FOIL audit after a new board majority took over in May and appointed staff attorney Margaret Murphy as the authority's new general counsel.

Joseph Burns, the authority's former secretary and general counsel, had served as the authority's FOIL officer during the two-year period audited. He was reassigned to the authority's Human Resources Department and no longer handles public information requests.

To address the fact that FOIL requests "fell through the cracks," the authority has changed how it responds to such requests. Those changes include electronically tracking all requests received, forwarding all requests to the three commissioners as soon as they are received and keeping a checklist that shows at a glance how each FOIL request is progressing.

"It’s not rocket science, but accountability," Schad said. "We’re past the days where that’s going to be a problem."

In dealing with the news media, Secretary Terrence McCracken said the authority no longer demands formal FOIL requests for all matters. Instead, common pieces of public information are either posted on the authority website or just given to callers who ask for it. Administrators also have relaxed their once-rigid policy requiring every media question be funneled through a public relations consultant.

"Why make people jump through hoops if the information is available?" McCracken said. "Let’s just get the information out, whether it’s good, bad or indifferent."

The authority revised and expanded its FOIL policy and procedures last month to comply with state law, outline the procedures for handling FOIL requests and identify what information is publicly available online.

In a related matter, the authority board is expected to approve a new open meetings policy this week to ensure free and open access to board meetings. The new policy outlines the rights of the public and news media to cover, photograph and record the authority's board meetings.

The authority also posts audio recordings of board meetings on its website, as well as most agenda information, which was denied to the public in the past. Authority leaders have also said they have plans to further improve the website and make board video recordings available.

Read the full FOIL audit memo here:

ECWA FOIL Audit (Text)

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