Transparency, not

by E.J. McMahon |  | NY Torch

Last week, at a Manhattan news conference that was also “live-streamed” on Governor Andrew Cuomo’s website, the chief executive officer of the Metropolitan Transportation Authority (MTA) and the president of Local 100 of the Transit Workers Union signed a memorandum of understanding (MOU) reflecting a tentative contract deal that will shape the MTA’s labor compensation costs for years to come. The governor sat between the MTA’s Tom Prendergast and the TWU’s John Samuelson and looked on as the deal was done.

screen-shot-2014-04-21-at-35337-pm2During the news conference, Prendergast and Samuelson outlined and commented on general terms of the agreement, which also were summarized in this news release from the governor’s office (and, subsequently, on the TWU’s own website).

But what, specifically, was on that all-important piece of paper?

The answer, incredibly, boils down to “none of your business.”

The MTA is denying Freedom of Information Law (FOIL) requests for the MOU document with this boilerplate email response:

Pursuant to N.Y. Public Officers Law §87(2)(c), an agency may deny access to records or portions thereof that…..”if disclosed would impair present or imminent contract awards or collective bargaining negotiations”.  As of this date, the contract referenced in your request has not been approved by the MTA Board.  Therefore, in accordance with this provision, your request is denied.

So, we’ll see the all-important details only after the deal has been ratified by the MTA Board — at which point, of course, it will be too late to raise questions or objections. This is a familiar Catch-22, exploiting a FOIL loophole frequently (but not universally) cited by local elected officials throughout the state, and it comes in especially handy when management or labor or both fears that taxpayers might not like what they see in a pending contract.

Based on the official talking points alone, Nicole Gelinas has already found plenty to criticize and question in this deal. Is there something else–something worse–we’re not being told?

P.S. — It’s not necessarily clear that FOIL, as worded, actually prohibits release of a collective bargaining MOU, whether or not it is sign din public. This 1995 advisory opinion by the state Committee on Open Government noted that the issue had never been litigated, but suggested a theory under which such documents could be considered public.

As further explained in the Empire Center’s 2008 policy paper on the subject:

The Freedom of Information Law (FOIL) presumes public access to information developed or possessed by government agencies. However, section 87(2)c permits agencies to withhold information if disclosure “would impair present or imminent contract awards or collective bargaining agreements.” A 1995 advisory opinion from the Committee on Open Government describes the section 87(2)c exemption as “… intended to ensure that government agencies are not placed at a disadvantage at the bargaining table and to ensure that there is a ‘level playing field.’ For instance, if a teachers’ association requested records from a school district indicating the district’s collective bargaining strategy … disclosure would place the district at a disadvantage and the negotiations would be unfair and unbalanced.”

In such a situation, there would be “an inequality of knowledge” between the two parties. But that changes once the two sides reach a tentative agreement, at which point “it might be contended that since a copy of a tentative agreement is maintained by both the school district and the teachers’ association, there is no inequality of knowledge regarding the content of that document and that, therefore, disclosure would not impair the negotiations.”

In effect, the language means that “once a contract goes to union rank-and-file members, negotiations are over,” says Robert Freeman, executive director of the state Committee on Open Government.

However, no state court has ruled on whether government entities can refuse to disclose details of tentative contracts. Nor apparently has any court sanctioned a municipality for releasing details of tentative contracts prior to ratification votes. The Court of Appeals, in a series of FOIL cases, repeatedly has ruled “the balance is presumptively struck in favor of disclosure.”

In New York, actual contract negotiations between public sector unions and government employers are held behind closed doors. But negotiations are subject to open-meetings laws in at least seven states—Florida, Kansas, Minnesota, Montana, Oregon, Tennessee and Texas. In at least four other states—Alaska, Idaho, Iowa and Ohio—the public is entitled to documents related to the negotiations.

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- E.J. McMahon is the Research Director at the Empire Center for Public Policy.