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Freedom of Information Act (or State Equiv)

Started by Rothman, July 16, 2015, 08:08:12 AM

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Rothman

Spawned from this message as a worthy topic of discussion to maintain thread topics --sso

Quote from: Laura on July 16, 2015, 04:33:47 AM
I definitely can't comment on what I am directly working on because it could cost me my job. I can't publicly comment on the actions of politicians involving transportation, either.

Although I understand that you're an intern, I've often wondered about government attempts to keep things in something as mundane as transportation as "confidential."  At least here in NY, we've got a state law that parallel's the fed's FOIA (ours is called FOIL) -- can't think of anything that I do here or that anyone else does here that wouldn't be FOILable.  In short, in essence information on everything that happens here would -- theoretically -- be public information anyway. 

So, although I can see some sort of argument that some DOT employee or other agency employee blabbing about things in development at their agency as breaking set procedures or regulations as to how information flows to the public, the idea that someone can get into trouble providing already public information to the public still makes me smirk. :D
Please note: All comments here represent my own personal opinion and do not reflect the official position(s) of NYSDOT.


froggie

I think Laura said that because Maryland transportation agencies tend to hold their cards close to the chest.  That's been my experience, at least.

jeffandnicole

Quote from: Rothman on July 16, 2015, 08:08:12 AM
Quote from: Laura on July 16, 2015, 04:33:47 AM
I definitely can't comment on what I am directly working on because it could cost me my job. I can't publicly comment on the actions of politicians involving transportation, either.

Although I understand that you're an intern, I've often wondered about government attempts to keep things in something as mundane as transportation as "confidential."  At least here in NY, we've got a state law that parallel's the fed's FOIA (ours is called FOIL) -- can't think of anything that I do here or that anyone else does here that wouldn't be FOILable.  In short, in essence information on everything that happens here would -- theoretically -- be public information anyway. 

So, although I can see some sort of argument that some DOT employee or other agency employee blabbing about things in development at their agency as breaking set procedures or regulations as to how information flows to the public, the idea that someone can get into trouble providing already public information to the public still makes me smirk. :D

There is a fine line sometimes, but you have to adhere to those fine lines.  Yes, a project in development may be 'foilable'.  But, the proper line to release that info if requested is the requester fills out a request to the FOIL department, then that department contacts NYDOT, then NYDOT submits that info to the FOIL department, then the FOIL department sends it to the requester.  If you sidestep all of that and just provide the info, you are probably in violation of your department or state policy.  Even if NYDOT wants to talk about a project, there are specific people that are permitted to discuss the project (ie: Project Manager, DOT Commissioner, etc).  Bob in engineering who is deciding where the traffic light should go does not have that authority to talk publically about a project.

Quote from: Laura on July 16, 2015, 04:33:47 AM
...This is my first post here in almost 3 months...

...However, it also means my role commenting on transit groups on facebook has changed. I definitely can't comment on what I am directly working on because it could cost me my job. I can't publicly comment on the actions of politicians involving transportation, either...

And you've been missed! :-)

I work with NJ, and on a very limited OT basis with NJDOT.  I'll talk about my snow plowing duties in general. And there's conflict-of-interest and ethics rules.  For example, I'll go to the NJDOT public info meeting regarding the 295/76/42 interchange project.  I sign in, putting down my home address and cell number.  I talk to NJDOT reps, never once mentioning where I work or what I do.  I may say I work in Trenton and they get a good idea I'm a state worker, but I never specifically come out and say it.  Now, if they were to ask where I work or what I do, then I could tell them.  But if I tell them out right, then that could be perceived as me using my position to try to influence them. 

J N Winkler

Quote from: froggie on July 16, 2015, 08:42:41 AMI think Laura said that because Maryland transportation agencies tend to hold their cards close to the chest.  That's been my experience, at least.

MdSHA is also desperately allergic to putting construction plans online--in fact, it is one of about five holdout state DOTs (or equivalents) that are left (the others are AZ, CO, HI, and MA).  Funnily enough, MdTA doesn't have this problem and has been putting construction plans online since 2003 at least.

Quote from: Rothman on July 16, 2015, 08:08:12 AMAlthough I understand that you're an intern, I've often wondered about government attempts to keep things in something as mundane as transportation as "confidential."  At least here in NY, we've got a state law that parallel's the fed's FOIA (ours is called FOIL) -- can't think of anything that I do here or that anyone else does here that wouldn't be FOILable.  In short, in essence information on everything that happens here would -- theoretically -- be public information anyway. 

So, although I can see some sort of argument that some DOT employee or other agency employee blabbing about things in development at their agency as breaking set procedures or regulations as to how information flows to the public, the idea that someone can get into trouble providing already public information to the public still makes me smirk. :D

We have had major problems in Kansas with our state FOI equivalent (Kansas Open Records Act, or KORA).  In principle everything KDOT does is releasable since the vast majority of its records (with the possible exception of construction plans and engineering estimates prior to contract advertisement) are not covered by any of the identified exemptions from KORA.  But I can virtually promise you that if you are a KDOT employee, you put your job on the line if you comment on any public forum about your work, even if you limit yourself entirely to matters that are covered by releasable documents.  The reason for this is that the agency likes to herd KORA requesters (and members of the public in general who want more in-depth information about KDOT's activities) through an administrative cattle chute where they can be punished for their curiosity.  To make a KORA request you are talking about $25/hour for search, $25/hour for CD burning/upload/staff time photocopying, KORA scheduled fees per photocopy page, per optical disc, etc., $25/hour staff time to monitor you while you review requested documents in person in a locked room, plus actual cost for staff attorney time to review documents to verify that they are releasable under KORA.

There have been attempts in the legislature to ease this punitive approach toward open records requesters, e.g. by amending KORA so that de minimis requests are guaranteed to be free of charge.  However, the problem is largely cultural and it will take sustained attention over a long period of time to eradicate it.  It hardly helps that judicial precedent has not favored disclosure with a full throat.  KDOT was sued about fifteen years ago for footdragging when the Garden City Telegram (the major daily paper for the western part of the state) requested safety data for railroad crossings, and while KDOT eventually released the data and got a chewing-out and an order to pay Telegram's costs from the district court judge, the appeals court (in a brilliantly opaque opinion) threw out the order for costs, and the state supreme court split the baby in a way that required Telegram to cover most of its own costs, which ran into the tens of thousands of dollars.

As the Telegram noted in an editorial after all the legal process had been completed:  if you have a broad freedom-of-information law but it still costs a lot of money to hold state agencies to account under it, then you are left with a strong chilling effect on public oversight of government.

My own experience has been that there is a state population threshold above which games with public access to official information are generally considered unprofessional and will simply not be played.  This is fifteen million.  CA, NY, and TX are all securely above this threshold, and while at least two of the three have some provision for charging for open records requests, in practice efforts are made to avoid making such charges; TX has a specific carve-out for small requests and in CA and NY administrative discretion is used to waive charges.

Below this threshold, there are states where agencies simply don't believe in unfettered public access even to releasable information and will dig in their heels no matter what the state FOI law actually says.  Pennsylvania, for example, tried to reform its FOI equivalent (dubbed the Right not To Know Law by cynics) in 2009, with the result that PennDOT has worked out delaying tactics to a tee.  The purpose of RTKL reform was to raise the odds that requesters would be able to get their hands on records almost instantly and for only nominal fees, if any, and it also created an administrative tribunal to limit the need to appeal denials and excessive fees to the courts.  PennDOT has discovered it can drag out RTKL requests out over multiple months without actually violating the RTKL, and of course they don't waive per-page photocopying charges even for documents that are supplied electronically.

If Pennsylvania (population about 10 million) does this, what hope for Kansas (population just under 3 million)?
"It is necessary to spend a hundred lire now to save a thousand lire later."--Piero Puricelli, explaining the need for a first-class road system to Benito Mussolini

hbelkins

Quote from: Rothman on July 16, 2015, 08:08:12 AM
So, although I can see some sort of argument that some DOT employee or other agency employee blabbing about things in development at their agency as breaking set procedures or regulations as to how information flows to the public, the idea that someone can get into trouble providing already public information to the public still makes me smirk. :D

I got caught up in a scenario something like that recently. Of course my job is to provide information to the public, but sometimes it's necessary to not publicly disclose information until a certain milestone is reached.

We had the fill around an an old box culvert collapse due to flooding on one of the main roads in our county back in March. We let an emergency contract to tear out the fill and the culvert and replace it with a bridge. The plans called for the road to be closed for up to seven weeks while the project was ongoing. This was going to interfere with an annual event in our area. We had made arrangements with the contractor to build a temporary diversion around the bridge while it was being built. I knew about this but couldn't tell anyone until the plans were finalized, and it affected me personally since it's on the route I drive to work every day. A local newspaper owner, member of the local tourism board and a friend of many years asked me about it, so I arranged a meeting between her and some of our engineers. We were able to tell her of our plans and she kept them under her hat until we were actually able to get the road open.

When I worked in Revenue, we had to sign confidentiality agreements. There are still requirements that certain info can't be divulged, but that applies more to people who are dealing with right of way acquisitions. Still, I try to respect requests not to say anything publicly, either in person or in social media posts. I don't want to alienate my bosses and I have a flawless record at work that spans 17 years with no reprimands. I want to keep it that way.
Government would be tolerable if not for politicians and bureaucrats.

Rothman

There is one area where I think confidentiality is needed and that's with contract lettings and ensuring that a contractor is not given privileged access to plans before bidding and whatnot...or any other privileges not afforded to other bidders.

Other than that, I am sort of miffed at the idea that there is public information out there that the public legally may have a right to, but because someone's boss doesn't want it released, the employees just follow their orders.  Have to say I've wondered many times when an agency's administration treatment of confidentiality becomes illegal -- usually when I'm wondering when legitimate "spin" becomes illegitimate "outright lying."
Please note: All comments here represent my own personal opinion and do not reflect the official position(s) of NYSDOT.

J N Winkler

Quote from: Rothman on July 16, 2015, 05:32:31 PMThere is one area where I think confidentiality is needed and that's with contract lettings and ensuring that a contractor is not given privileged access to plans before bidding and whatnot...or any other privileges not afforded to other bidders.

I think applying absolute confidentiality to construction plans prior to contract advertisement is outmoded and has the potential to be dangerous.

*  It is increasingly the norm for state DOTs to release draft plans prior to advertisement as part of preconstruction or constructability reviews.

*  Plans are often in wide circulation prior to advertisement for review by utilities, remote units of the state DOT, specialists in difficult engineering problems, etc. before they are finalized.  Even if these entities faithfully observe a requirement not to circulate plans any further, there is no realistic way to prevent whisper communication of the particulars to other parties.

*  Some state DOTs have confidentiality provisions in their FOI laws that are designed to protect contract plans prior to advertisement but are sloppily worded and can be interpreted to mean such plans are exempt from disclosure after advertisement.  (KORA is one example of this.)

There is certainly a public interest in ensuring that no contractor has undue advantage over a competitor when bidding on a state contract.  In the case of highway construction projects, however, I would contend this is better served by ensuring that no contractor has preferential (or insider) access to information, not by rolling a blanket of confidentiality over everything until the advertising date.

Quote from: Rothman on July 16, 2015, 05:32:31 PMOther than that, I am sort of miffed at the idea that there is public information out there that the public legally may have a right to, but because someone's boss doesn't want it released, the employees just follow their orders.  Have to say I've wondered many times when an agency's administration treatment of confidentiality becomes illegal -- usually when I'm wondering when legitimate "spin" becomes illegitimate "outright lying."

Part of the problem is that public access to information is one of the gray areas in the law where acting contrary to law is not specifically defined as a criminal offense or even, in most states, as an administrative infraction.  In Kansas I have noticed that there is a culture in KDOT where even general curiosity about the agency's programs and procedures is considered to be questioning KDOT's expertise or as part of a bid to waste state employees' time, and has to be shut down as fast as possible.  KDOT introduced the "charge everything that moves" approach to KORA requests in the mid-1980's, but I have heard stories going back to the 1970's of people being required to sit on the floor at the then Kansas SHC and look at plans there because state-owned office furniture would not be made available to gratify the idle curiosity of a member of the public.

Nobody has ever done anything about this kind of mean-spiritedness because nobody has said boo to KDOT and managed to make it stick.  The Garden City Telegram tried and came out much the worse for it even though a district court judge agreed with them.  Private citizen requesters don't have even close to the same resources as even small-town newspapers.  It takes the deep pockets of a large newspaper chain to tackle a bad open records law or culture in a state the size of Kansas, and none of them are stepping up to the plate because they all see Kansas (and Midwestern states in general) as training farms for their cub reporters.

And as the case of Pennsylvania shows, even major reforms that get past the legislature and the governor can deliver mixed results at best.  When a broad open-records law nevertheless exempts agencies from fines or bad-faith determinations, some agencies even cave in to temptation and compile secret manuals that their employees use to systematize noncompliance.
"It is necessary to spend a hundred lire now to save a thousand lire later."--Piero Puricelli, explaining the need for a first-class road system to Benito Mussolini

Rothman

Quote from: J N Winkler on July 16, 2015, 06:38:07 PM
Quote from: Rothman on July 16, 2015, 05:32:31 PMThere is one area where I think confidentiality is needed and that's with contract lettings and ensuring that a contractor is not given privileged access to plans before bidding and whatnot...or any other privileges not afforded to other bidders.

I think applying absolute confidentiality to construction plans prior to contract advertisement is outmoded and has the potential to be dangerous.


I wasn't meaning "absolute confidentiality" to the letting date.  That's just stupid and would cause bids to be ridiculously inaccurate.  For states where contractors have to wait for the letting, I just facepalm.

By "privileged access," I meant releasing plans to a certain contractor before the actual official time period leading up to the letting and the like. 
Please note: All comments here represent my own personal opinion and do not reflect the official position(s) of NYSDOT.

Rothman

I'm actually a little astonished at the push for design-build contracts, though.  Sometimes, I wonder if design-build contracts actually reduce competition.  For design-bid-build, sure, for big projects you're only going to have a handful of contractors that'll be able to handle them.  However, I do wonder if design-build is actually pushing smaller competitors out (i.e., those that could do either design or construction cheaper, but not both).
Please note: All comments here represent my own personal opinion and do not reflect the official position(s) of NYSDOT.

J N Winkler

Quote from: Rothman on July 16, 2015, 09:34:58 PMI wasn't meaning "absolute confidentiality" to the letting date.  That's just stupid and would cause bids to be ridiculously inaccurate.  For states where contractors have to wait for the letting, I just facepalm.

By "privileged access," I meant releasing plans to a certain contractor before the actual official time period leading up to the letting and the like.

Yes, it doesn't seem we disagree on any substantive point; I just mentioned absolute confidentiality since those laws are still on the books.  The important thing is to prevent unfair advantage.

Quote from: Rothman on July 16, 2015, 09:38:35 PMI'm actually a little astonished at the push for design-build contracts, though.  Sometimes, I wonder if design-build contracts actually reduce competition.  For design-bid-build, sure, for big projects you're only going to have a handful of contractors that'll be able to handle them.  However, I do wonder if design-build is actually pushing smaller competitors out (i.e., those that could do either design or construction cheaper, but not both).

I don't think one could argue that design-build reduces competition without relying on some fairly subtle findings from the theory of the firm to derive plausible barriers to entry.  In the example you suggest, this might be consultant/contractor joint ventures being disadvantaged in competing for design-build jobs compared to other companies where the contractor and consultant sides are part of the same firm and do not have to negotiate with each other.

To further complicate attempts at generalization, design-build contracts are awarded according to many different types of criteria (not all of which are amenable to objective quantification), and come in many different sizes.  There are even some oddball design-build setups where the design-builder acts as its own contract letting agent (on a design-bid-build basis) for subcontracts--this has been happening with the North Tarrant Express, for example.

My general impression is that the consulting and contracting community in the US is pretty conservative.  We don't do the sorts of things with contractor rating that go on in the Australian states, for example, and we also tend not to do area-based term maintenance contracts like the British do.  Design-build tends to be reserved either for megaprojects or for small projects for which there is an element of contractor-supplied design; there are relatively few medium-sized projects that are done as design-build.  The usual motivation for doing megaprojects as design-build is to cut a few steps out of the critical path and thus eliminate cost inflation due to construction delay.  This means that attempts to study design-build can easily be led astray by all of the other things that go on with megaprojects, such as very short lists of players on both the engineering and construction sides, and a persistent tendency to understate cost estimates and overstate certainty of site constraints in order to obtain and hold political approval.
"It is necessary to spend a hundred lire now to save a thousand lire later."--Piero Puricelli, explaining the need for a first-class road system to Benito Mussolini

corco

#10
Montana has one of the most open public records policies in the country. The state constitution makes it pretty clear:

http://leg.mt.gov/bills/mca/CONSTITUTION/II/9.htm

QuoteSection 9. Right to know. No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.

This has been interpreted very literally by courts in Montana. When I first arrived in this state, the county I worked for took this to mean that if I were sitting at my computer, and somebody from the public walked in and wanted to read my e-mail, I was to stand up and let them read my e-mail, no questions asked. The public entity I work for now actually has lawyers that screen things to cover the 'individual privacy' thing prior to releasing, but everything beyond that is still very much public.


oscar

Quote from: J N Winkler on July 16, 2015, 12:20:06 PM
Quote from: froggie on July 16, 2015, 08:42:41 AMI think Laura said that because Maryland transportation agencies tend to hold their cards close to the chest.  That's been my experience, at least.

MdSHA is also desperately allergic to putting construction plans online--in fact, it is one of about five holdout state DOTs (or equivalents) that are left (the others are AZ, CO, HI, and MA

HIDOT was, last I noticed, really allergic to FOIA in general. That was apparent from a training session on HIDOT's internal GIS system, which was attended mainly by state lawyers whose jobs included representing HIDOT. On that occasion, I was allowed to review and take notes from straight-line diagrams, but unlike the state lawyers I was not allowed to keep a copy (now the SLDs are publicly available).

Just a side observation on the use of FOIA (which I think I've made elsewhere on this forum) from my previous work for a Federal non-transportation agency -- Sometimes the staffs of government agencies are receptive to informal requests, but asking for information through a formal FOIA request means FOIA lawyers get involved, which at my agency guaranteed hassles and delays for the requester. Of course, asking nicely for everything in my files (including sensitive and heavily-protected confidential commercial information) meant an instant referral to my agency's FOIA's lawyers, who can deploy every possible legal privilege and FOIA exemption to stiff-arm the requester. That, among other things, means all the freeway interchange doodles in the margins of my notes never became public and never will. :)
my Hot Springs and Highways pages, with links to my roads sites:
http://www.alaskaroads.com/home.html

Rothman

#12
Quote from: J N Winkler on July 17, 2015, 12:57:20 AM

To further complicate attempts at generalization, design-build contracts are awarded according to many different types of criteria (not all of which are amenable to objective quantification), and come in many different sizes.

My experience is limited to New York, which only legislatively allowed design-build contracts a couple of years ago.  What is a little concerning to me personally is that although the Legislature meted out a typical RFQ-->RFP-->Best Value Section process and the fact that NYSDOT strictly vets which projects are chosen for design-build, the Legislature did allow the State to maintain a list of "pre-qualified contractors" that do not have to go through the RFQ process (the first step) (lousy link, but it provides a good overview of the legislation).

Although I understand the desire for efficiency, having a list of contractors on hand for which design-build projects will be given more of a consideration makes me a little nervous.  One consolation is that I do believe NYSDOT has the right guy in charge of reviewing the projects, however. And I do have to say that NYSDOT is choosing larger projects to go design-build, largely for the reasons you mentioned (i.e., trying to avoid typical schedule and cost hangups with going design-bid-build).
Please note: All comments here represent my own personal opinion and do not reflect the official position(s) of NYSDOT.

Laura

#13
Quote from: jeffandnicole on July 16, 2015, 09:27:41 AM
There is a fine line sometimes, but you have to adhere to those fine lines.  Yes, a project in development may be 'foilable'.  But, the proper line to release that info if requested is the requester fills out a request to the FOIL department, then that department contacts NYDOT, then NYDOT submits that info to the FOIL department, then the FOIL department sends it to the requester.  If you sidestep all of that and just provide the info, you are probably in violation of your department or state policy.  Even if NYDOT wants to talk about a project, there are specific people that are permitted to discuss the project (ie: Project Manager, DOT Commissioner, etc).  Bob in engineering who is deciding where the traffic light should go does not have that authority to talk publically about a project.

Quote from: Laura on July 16, 2015, 04:33:47 AM
...This is my first post here in almost 3 months...

...However, it also means my role commenting on transit groups on facebook has changed. I definitely can't comment on what I am directly working on because it could cost me my job. I can't publicly comment on the actions of politicians involving transportation, either...

And you've been missed! :-)

Aww, thanks, Jeff! I've missed you and everyone else here, too!

As an intern in the office of service development, the issue definitely about releasing information prior to it officially going to press. To say that I'm finalizing the fall service changes right now isn't a secret - the fall release of schedule changes is usually the biggest each year because of school route changes. The issue would be if I started talking specifics in a public forum prior to their release. 99.99% of people are not going to care if an underutilized stop is eliminated from a route, but those two people who use it will. God forbid they have to walk an extra 500 feet or something. But it would be a headache if word got out before it was final and those two people decided they wanted to cause a ruckus about it.

More importantly, though, public transit is a hot political issue here right now. Governor Hogan cancelled the red line light rail through Baltimore, which has caused a lot of controversy. He ran on canceling it as part of his running platform last year, so it wasn't really a surprise when he officially announced it in June. However, that doesn't mean that MTA employees could go around telling everyone before the governor's official announcement. Everything is technically still in flux up until the official announcement - he could have changed his mind in the 11th hour and decided to have MTA do another analysis before canceling. Then maybe three days later he could have wanted another analysis done differently. And so forth.

The weird thing that I didn't expect to come up was people noticing that I have an MTA badge at bus stops and people coming up to me and complaining about the service, lol. So I listen to their complaints and try to answer them in a way that makes them feel heard but also is semi-official. The other day, someone was complaining about how our entire system isn't 24 hours. I explained that we do have some 24 hour lines that have limited runs in the middle of the night, but that for many of the lines, there just isn't any demand to run them late because there would be no riders. He didn't like my answer ("why can't we be like NYC or Portland!?") but appreciated that I answered him.


Quote from: J N Winkler on July 16, 2015, 12:20:06 PM
Quote from: froggie on July 16, 2015, 08:42:41 AMI think Laura said that because Maryland transportation agencies tend to hold their cards close to the chest.  That's been my experience, at least.

MdSHA is also desperately allergic to putting construction plans online--in fact, it is one of about five holdout state DOTs (or equivalents) that are left (the others are AZ, CO, HI, and MA).  Funnily enough, MdTA doesn't have this problem and has been putting construction plans online since 2003 at least.


Yep. I work at MTA, which generally doesn't post planned changes for bus routes online prior to a week before they go live.



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