Officials refuse to release payroll, budget details; disclosure experts challenge authority’s legal rationale
Editor’s note: The story below provides the full details, but to get the full effect, readers should view the television version posted above(here) and, especially, the video of the complete unedited interview with Peace Bridge General Manager Ron Raines posted below(here).
New York’s labyrinth of authorities are widely decried as shadow governments that shield their activities from public scrutiny. But they are a model of transparency compared to the Public Bridge Authority that operates the Peace Bridge connecting Buffalo and Fort Erie, Investigative Post has found.
Authorities and other governmental bodies on both sides of the border are obligated to release records in accordance with freedom of information laws in their respective countries. But the Public Bridge Authority, seeking to exploit its status as an international entity, contends it is not bound to the disclosure laws of either country and has adopted policies that give it wide latitude to reject information requests.
For example, federal, state and local governments in both the U.S. and Canada are obligated to disclose who works for them and how much they are paid. But the Public Bridge Authority rejected an information request from Investigative Post that sought the names, job titles and earnings of their 95 employees.
Likewise, governments on both sides of the border are obligated to provide details on how they spend money through disclosure of their annual operating budget. But when Investigative Post requested the authority’s most detailed budget document to show how it spends the $33 million it takes in annually, officials would provide only a two-page summary.
Ron Rienas, the authority’s general manager, insists he is following the law, particularly Canadian privacy statutes.
“I provided you all the information I could in accordance with Canadian and U.S. law,” he told Investigative Post.
Legal experts on both sides of the border disagree, saying there are no laws on the books that prohibit the authority from disclosing the information sought by Investigative Post.
Michel Drapeau, an Ottawa attorney regarded as one of the leading FOI experts in Canada, said the authority has “a duty to disclose.” The authority’s rationale in refusing to disclose payroll and budget information “doesn’t strike me as much of an argument,” he said.
Karim Abdulla, a Buffalo attorney and expert in the state and federal FOI laws, said the disclosure policy used by the authority makes it “significantly less transparent,” than local, state and federal governments.
Abdulla also challenged the authority contention that, as a cross-border authority, it is not required to follow the FOI laws of either nation.
“The Public Bridge Authority is recognized by New York State as a Class D public authority,” he said, “yet they’re saying they’re not subject to FOI. I find that to be very, very strange.”
Refusal to release payroll information
The Public Bridge Authority is a stand-alone entity recognized as a public benefit corporation in New York and crown corporation in Ontario. It is responsible for operating and maintaining the bridge; customs and immigration are handled by separate federal departments.
The authority is governed by a 10-member board. Its five American members represent the governor, state attorney general, Department of Transportation and Niagara Frontier Transportation Authority.
The authority is self-sufficient, relying on truck and passenger car tolls and lease payments from two duty free stores located at the base of the bridge in Buffalo and Fort Erie. It employs the equivalent of 95 full-time employees.
West Side residents concerned about the authority’s plan to expand the bridge plaza on the Buffalo side of the bridge have periodically complained about what they consider the authority’s lack of transparency.
Investigative Post, seeking to analyze the authority’s spending and payroll practices, filed a freedom of information request with the authority on Nov. 20 seeking a detailed operating budget; the names, job titles and earnings of authority employees; employment contracts of senior managers detailing perks such as cars and other benefits they receive; labor contracts; a detailed budget of contracts with the two duty free stores; and payments to private companies and professional firms the authority does business with.
Rienas, charged under the authority’s information policy with responding to the request, provided some documents, including labor contracts and vendor payments, as well as audited financial statements and several policies. But he would provide only a two-page budget summary and refused to provide any records related to employment and the duty free stores – the guts of Investigative Post’s request.
This is in marked contrast to governmental bodies in Canada and the United States, which are required by law to disclose the type of information the authority withheld. Authority officials, to the extent they explained their denial, contended that privacy laws in Canada precluded them from releasing information on their employees.
“Canadian federal law and applicable case law suggests that the Authority must have the explicit consent of individuals before releasing employment information, particularly where the information concerns remuneration,” Matthew Davison, the authority’s director of communications and government relations, wrote in an email.
Rienas, in a subsequent interview, maintained that Canadian privacy laws prohibited him from even voluntarily disclosing his own salary – although he did acknowledge that the authority provides him a car.
“Canadian law is very clear as to what can and cannot be released,” he said.
He disputed the notion that the public has a right to know about salaries paid to authority employees, saying that information “is not germane to our operations.”
Drapeau, who handles 300 to 1,000 FOI requests a year for clients in Canada and is the author of two books on disclosure and privacy laws, said governmental bodies are obligated under law to disclose basic payroll information and that such disclosure does not violate privacy statutes.
“You are entitled to know who is on the payroll,” he said.
Releasable information, Drapeau said, includes employee names, job titles and approximate earnings.
Eric Murphy, client liaison officer with the Office of the Information Commissioner of Canada, agreed.
“That type of information is not considered personal and generally can be released,” he said.
Drapeau added that when it comes to senior managers, disclosure is also mandated for additional compensation such as benefits, car assignments and travel and expense allowances.
Murphy, again, agreed, saying such information “would generally be releasable.”
Failure to release other financial data
The authority also refused to release an operating budget detailing how the authority uses the $33 million it projects collecting in 2013.
Investigative Post’s request asked for the “most-detailed budget developed for the current fiscal year.” Instead it received the one-page summary of operating revenues and expenses and a one-page summary of its capital budget.
Rienas, when challenged, said, “I provided you the exact same information the board gets.”
Drapeau said that under Canadian FOI law, governments are required to release budget details that go well beyond one-page summaries.
Murphy, of the Office of the Information, added: “I can’t think of anything that would automatically justify withholding an agency’s budget.”
Drapeau said the details of government contracts with private companies are also subject to disclosure. Rienas refused to provide the authority’s leases with the two duty free stores, saying in an email that the store owners would not consent to their release.
While certain details can be withheld, Drapeau said, financial terms, including lease payments and commissions, are discloseable.
“There’s no reason, at the end of the day, why you could not obtain that information,” he said.
Falls short of New York disclosure requirements
Abdulla and Robert Freeman, executive director of the State Committee on Open Government, reviewed the authority’s information policy and found it much weaker than the norm in the United States.
“This policy gives the authority immense authority to withhold information,” Freeman said. “It does not offer guarantees of public access comparable to the law in New York State.”
Added Abdulla: ‘They’ve given themselves more broad language, more leeway, to withhold a document.”
He also noted that unlike the state and federal FOI laws, the authority’s policy provides for no legal avenue to appeal a denial of information.
“You can’t take it up with a judicial body,” he said. “They are the judge and jury when it comes to access to records.”
Abdulla, whose clients include Investigative Post and The Buffalo News, said the authority is cherry picking what laws it chooses to follow.
“What we have is a very significant and important public agency … taking the position that they’re not subject to our laws. They certainly (think they are) subject to other laws that seem to fit them, but not subject to the Freedom of Information Law and I think that’s an unsustainable and inconsistent position for them to take – and frankly, a little ridiculous.”
Rienas disagrees that the authority is not transparent.
“We are a very transparent agency,” he said.
Drapeau sees it differently, telling Investigative Post that the authority’s handling of its information request suggests the authority is “not very transparent at all. On a scale of one to 10, it will be (only) a one or a two.
“If you are going to be here in this community and you want to gain their trust of the public, through the media or directly to the public, there’s never enough transparency,” he said.