Streetsblog is quite a FOIL to the Department of Transportation!
The city DOT consistently violates the state's Freedom of Information Law by delaying for six months nearly all of the requests for public information from journalists — and must be ordered to end the practice of imposing these uniform, half-year delays that prevent the public from learning, in a timely fashion, what its government is up to, argues a new lawsuit filed by Streetsblog.
Since June 2021, Streetsblog has submitted at least 33 FOIL requests to DOT to which the Department has responded in the same way: “Due to the volume of FOIL requests which DOT receives per year ... we expect to provide you with a response on or about the date indicated above.”
In each request, the DOT said, without the required specific justification or explanation, that it would respond in six months, regardless of the nature of the request.
Streetsblog is not the only victim of the agency's failure to respond to reporters' request in a timely fashion.
According to the lawsuit, out of 21,298 information requests submitted to DOT between June 2021 and August 2024, 98 percent of the requests suffered a delay of longer than 170 days. And the average time frame between the initial request and DOT’s predicted date of response was more than 182 days.
(That information comes from publicly available data that doesn't allow the public to see what the request actually was. But when Streetsblog wanted to drill down to see what requests were being stalled, the agency denied our FOIL request for the agency's FOIL log.)
These "across-the-board, six-month-long delays violate both the spirit of FOIL and its text, as the boilerplate delays are not 'reasonable under the circumstances of the request,'" argued the filing by the Cornell Law School First Amendment Clinic, which is representing Streetsblog in the case. "The law assumes that most requests will be completed within 20 business days, but for requests that cannot be, it requires delays to be 'reasonable under the circumstances of the request,' and the agency must explain in writing why it is unable to meet the 20-day cut-off for the particular request under consideration.
"DOT fails to provide the required individualized explanations for its delays," the suit continued. The failure to provide a written explanation for its inability to respond within 20 days, constitutes a denial of the request."
At issue is not merely the answers to Streetsblog's or other city reporters' backlog of legitimate questions, but the agency's role in weakening the Freedom of Information Law, which codifies that the “people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society."
As such, "DOT’s actions have caused and continue to cause irreparable harm to the rights guaranteed to Streetsblog and to the public at large under FOIL," our lawsuit states.
The public's ability to get information in a timely fashion is not some mere academic exercise. Back in 1974 — the Watergate era — no less an authority on information than the House of Representatives sided with the seekers of truth, pointing out that “information is often useful only if it is timely,” and therefore “excessive delay by the agency in its response is often tantamount to denial.”
Our case not only details the long-running three-dozen FOIL requests, but lays out in intricate details and exhibits our five outstanding requests:
- On January 19, 2024, Streetsblog sought the results of an online questionnaire that DOT conducted with residents of Underhill Avenue admit controversy over the mayor's decision to pause a bike boulevard project there. DOT gave itself 181 days to respond, but we have not received that information. That's 242 days and counting.
- On February 26, 2024, Streetsblog requested a “list of new pedestrian space DOT created in 2022 and 2023 under the Streets Plan.” DOT gave itself 178 days to respond, but we have not received that information. That's 204 days and counting.
- On July 22, 2024, Streetsblog requested annual figures from the previous five years showing the number of pedestrians killed while jaywalking in New York City and the total number of pedestrian traffic fatalities in the city. We have not received that information. That's 57 days and counting, but then again DOT had said it would need 185 days to respond.
- On July 24, 2024, Streetsblog requested “Commissioner Ydanis Rodriguez’s official calendar” from a single day: July 1, 2024. We have not received that information. That's 55 days and counting, but then again DOT had said it would need 187 days to respond.
- On July 24, 2024, Streetsblog requested “all emails and text messages sent or received on June 5 or June 6, 2024, by Ydanis Rodriguez in his official capacity as DOT commissioner containing the words ‘congestion’ or ‘tolling.’” That's 55 days and counting, but then again DOT had said it would need 187 days to respond.
Between the time that the lawsuit was being prepared, we did receive one of our outstanding information requests: information about how a Department of Transportation holiday party ended up Above the Heights, a Washington Heights hotel with links to Rep. Adriano Espaillat and Commissioner Ydanis Rodriguez.
The agency didn't give us much except a receipt for the four-hour, 247-person party — which cost $19,760, or $80 a head. But there was a small tidbit in an email from one DOT staffer, who asked the party space sales rep, "How is parking in that area?" (Reminder: the hotel is within walking distance of two subway lines and no one should be driving after a four-hour open bar.)
A data analyst who himself relies on the Freedom of Information Law to obtain key statistics said he "appreciate[s] the investment from Streetsblog into addressing the root of this issue."
"I am concerned by a growing trend where government agencies blatantly ignore the letter and intent of many laws ranging from FOIL timelines, to restrictions on sidewalk parking or streets master plan required safety improvements," said Jehiah Czebotar, who said he has four outstanding FOILs with various city agencies, which have been outstanding for an average of 269 days.
"The average time DOT took to answer three of my closed FOILs is 218 days," he said. "Laws are designed to create a well functioning society and there is a process to change them — but when the city willfully violates laws and sidesteps that process it is unhealthy and negatively affects us all."
This is not the first time Streetsblog has tangled with DOT in court. In 2023, we sued the agency for denying our request for the license plate numbers of drivers who had completed its safety course under the Dangerous Vehicle Abatement Program. We won in a settlement after arguing that the plate numbers were essential if the public was to analyze the effectiveness of the course.
The release of the records was so delayed that by the time Streetsblog got the plate numbers, DOT had already done its own analysis.
And Streetsblog recently sued the Department of Investigation for withholding the answers from a background questionnaire filled out by the mayor's chief adviser Ingrid Lewis-Martin. After a lengthy delay, we did receive the information — but only in a settlement that allows the agency to claim there is no legal precedent requiring it to always yield to such requests from other journalists. (We'll be reporting what we discovered soon.)
On the FOIL lawsuit, we're trying to set a lasting precedent to overturn the DOT's "pattern and practice" of uniform six-month delays, according to our lawyer, Michael Martin Linhorst, who said to strap in for a long and bumpy ride.
"We're trying to break new legal ground, and doing that might take some time and a trip to the appeals courts," he said.
Streetsblog asked DOT for comment for this story, but the agency declined. So we filed one more FOIL request, seeking the staffing and the budget of the office that handles FOIL requests and the number of requests that the office receives every year.
We didn't hear back. See you in six months.
