Intern vs. Mayor: Battle bares Bloomberg’s argument for secrecy

When New York Mayor Michael Bloomberg tapped Cathie Black to be schools chancellor, a lowly intern filed a freedom of information request that the city fought for two years. Now, that intern reflects on why the mayor tried so hard to keep secret emails that turned out to be innocuous

In November 2010, I was earning $300 a week for The Village Voice, blogging about unemployed actors who moonlit as bed bug exterminators and a city project to make biofuel out of toilet water. One afternoon, then-Schools Chancellor Joel Klein stunned the city by suddenly resigning his post of eight years for a job at Rupert Murdoch's News Corporation.

The bigger shock that day was who New York City Mayor Michael Bloomberg chose as Klein's successor: Cathie Black, the Hearst Magazines chairwoman who, as far as anybody could tell, had never stepped foot in a public school, let alone knew how to run one (or the city's 1,700, for that matter).

The announcement sparked fierce criticism among parents, educators, politicians and the city's press corps.

So I fired off a routine Freedom of Information request to the mayor's office, seeking emails between Black, Bloomberg and their staffs.

When the emails were finally released last week, after a two-year legal battle, they revealed a desperate public relations campaign in which city officials tried to rally support from prominent women — including Oprah Winfrey, Gloria Steinem, Caroline Kennedy, and Bette Midler — to champion Black's appointment. (I will admit: never in a million years did I expect my work to result in stories containing the sentence, "Ms. Winfrey couldn't be reached for comment.") In the end, the emails were amusing, slightly enlightening, but largely innocuous.

Which is why it's so puzzling that the city fought all the way to the state's highest court to block their release. Cathie Black resigned as schools chancellor after just 95 days on the job. The case to keep her emails secret would last more than six times as long.

If I hadn't had high-powered help, the city would surely have won, and quickly. The city initially denied my request and, after I had exhausted an administrative appeals process, John Cook — now the editor of Gawker — put me in touch with a media law clinic at Yale Law School.

The Bulldogs and Elizabeth Wolstein — a partner at Schlam, Stone & Dolan who once supervised appeals for the U.S. Attorney in the U.S. Court of Appeals for the Second Circuit — agreed to take the case, pro bono, propelling a fresh-out-of-NYU, semi-employed, then-21-year-old journalist into a courtroom battle with New York's billionaire, third-term mayor.

We filed our lawsuit in May 2011 and won a judgment from the state's Supreme Court — New York's trial court — that Thanksgiving. The city appealed, drawing the process out another two years.

Plenty has been written about the actual emails since they were finally released last Thursday. The documents (and the protracted legal dispute surrounding their release) led to two articles in The New York Times, an article and an editorial in the New York Post, and stories in the New York Daily News, the Associated Press, WNYC, the Village Voice, the New York Observer, The Daily Beast, Gawker , Gothamist , Metro, New York magazine, NY1, and The Wall Street Journal.

But less has been written about why the city fought so hard — it spent more than 180 hours, totaling more than $25,000 in staff time — to keep the emails secret. Susan Paulson, a senior attorney for the city's Law Department who handled the appeal, has given some clues.

Last Halloween, Paulson showed up to the courthouse on East 25th Street and Madison Avenue. The five-judge panels in this courthouse hear appeals for civil and criminal cases in Manhattan and the Bronx, and at 3:10 that afternoon, Paulson took to the lectern and presented the city's argument.

While Black was not yet on the government's payroll when the emails in question were written, she was nonetheless acting as a "consultant" to the mayor, Paulson said, because she was acting at his direction to further one of his policy goals. What was that goal? Securing Black's own position on the government's payroll.

In her original order, trial court Judge Alice Schlesinger had minced no words, calling this argument "particularly specious" and "wholly devoid of merit." The five judges on the appellate panel also rejected the city's claim.

But the city persisted and tried to get a hearing in the state's highest court, the Court of Appeals, claiming the case now represented a novel and statewide issue.

I'd often been asked why I thought the city was fighting so doggedly to keep these emails secret. But without having seen them, it was difficult to say whether there was a sinister motive or a more legitimate reason.

While petitioning the Court of Appeals to take the case, the city began to make its policy concerns clearer. Disclosing communications with people who were appointed to, but had not yet taken, office would make it more difficult to lure good talent from the private sector, it argued. Of course, people considering public service know they are stepping under a public microscope.

There is also an interest, the argument goes, in allowing government officials some degree of privacy to do their work, so they can deliberate freely and candidly. That is the reason certain communications within and between government agencies are often exempt from disclosure under public transparency laws. These days, of course, much of that deliberation occurs electronically, creating a permanent record. Ardent transparency advocates often want those records open, too, arguing we shouldn't have any smoke-filled rooms — literal or virtual.

"The City believes that the principles permitting government employees to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure, should extend to individuals who have been elected or selected to public office but have not yet assumed office," Paulson wrote me — in an email, of course — answering a question for this article.

The question is where, exactly, to draw the line? Suppose the public backlash had forced Bloomberg to abandon hiring Black as chancellor, or that Black herself had withdrawn from the running. Could the emails have been kept secret merely because she had, at one point, been considered for the job? What, then, would prohibit an agency from withholding records of true public import by simply claiming that the Mayor was thinking about hiring John Doe to be his next Deputy Junior Assistant Something-or-Other someday?

While the city maintains it fought for the principle of free and candid communications, there's another theory as to why the mayor's office resisted disclosing these emails: It feared a precedent that would open the floodgates to release other ones that might be worse than embarrassing.

Public records laws rarely have much bite. And, except when disclosure has been advantageous to its goals, the Bloomberg administration has had a famously poor track record of respecting them . But they are still valuable tools for empowering public oversight. And sometimes, they even let David the lowly intern cut Goliaths like Bloomberg down to size.



RTI Judgement Series: UGC disburses full money but sends only reminders for incomplete hostel building

The UGC gave complete money and yet did not take any action for three years except sending dutiful reminders to the Institution for the incomplete work. This is the 86th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application

The Central Information Commission (CIC), while allowing an appeal, directed the chairman of University Grant Commission (UGC) under the Ministry of Human Resources Development (HRD) to give a report on actions being taken against the errant institution.

While giving this judgement on 25 February 2009, Shailesh Gandhi, the then Central Information Commissioner said, “It is a matter of concern that the UGC which has been charged and trusted with the responsibility of recognizing educational Institutions and disbursing grants, acts in a completely irresponsible manner and takes no responsibility to bring errant Institutions in line.”


Meerut (Uttar Pradesh) resident Jai Chand Tyagi, on 15 May 2008, sought information about mis-utilisation of UGC grants towards the scheme of women's hostel by Shaligram Smarak PG College at Rasna in Meerut, from the Public Information Officer (PIO) of UGC under the Right to Information (RTI) Act. Here is the information he sought and reply given by the PIO...


1. Information furnished by Commission under page serial no. (9.5/436) line no. 17 & 18 mentioned therein (it is a fact that hostel building is not complete and not yet functional). Commission has submitted it report of mis-utilisation of UGC grants by the college, but till no information of action taken against the report has been intimated/furnished. It is, therefore requested to supply the same in the first instance.         

PIO's Reply- The NRCB has send inspection report of Shri Shaligram Smarak College, Rasna, Meerut to Chairman, UGC for suggestion of further action and after receive the same action suggested will be intimated to you.


2. If found mislead by the college in this matter, what action/rules & regulations being suggested by the UGC against the college. A copy maybe provided. 

PIO's Reply- If found any mislead by the college in the matter of misutilisation of UGC grants, then UGC has provision in the guidelines to inspect the Construction of Building maybe it's a Women's Hostel or any other building, which may be seen as Annexure-I.


3. Is any action will be taken by the UGC against the college in the matter or not, proof information in this regard may be provided.  

PIO's Reply- Already stated above in the reply of S.No.1.


Not satisfied with the replies of PIO, Tyagi filed his first appeal. There was no mention of an order passed by the First Appellate Authority (FAA). Tyagi, then approached the CIC with his second appeal.


During the hearing before the CIC, it became known that Tyagi had been trying to draw the attention of UGC to the fact that Shaligram Smarak PG College at Rasna in Meerut had taken grant for a hostel building, which was not completed, and he alleges it (the building) stands on land not owned by the college.


Tyagi had filed a complaint about this in July 2006 after which the UGC constituted an enquiry Committee headed by Dr CS Meena and Prof MH Qureshi. The Committee, in its report submitted on 9 October 2006 said that the hostel building was not complete.


The Committee recorded the complaint of the appellant that the hostel building was on land whose ownership was not with the institution, but made no further comment. The enquiry committee also recorded that a false report has been filed with UGC about the hostel building being complete. The UGC gave complete money for the building, and yet did not took any action in the last three years except to send dutiful reminders to the Institution, the Commission observed.


Tyagi had asked about what action has been taken against the Institution and the UGC informed him that it only sent reminders to Shaligram Smarak PG College.


Mr Gandhi, the then CIC, said, "It is a matter of concern that the UGC which has been charged and trusted with the responsibility of recognizing educational Institutions and disbursing grants, acts in a completely irresponsible manner and takes no responsibility to bring errant Institutions in line."


While allowing the appeal, he then directed the chairman of the UGC to send a report in this matter to Tyagi and the CIC before 15 March 2009. The Commission also directed the PIO to give a copy of the Enquiry Committee report to the appellant and the Commission.




Decision No. CIC /OK/A/2008/01189/SG/2074

Appeal No. CIC/OK/A/2008/01189/SG


Appellant                                            : Jai Chand Tyagi

                                                            Meerut - U.P.


Respondent 1                                     : Dr (Mrs) HK Chauhan

                                                            Joint Director & PIO

                                                            University Grant Commission

                                                            Ministry of H.R.D.

                                                            35-Ferozshah Road,

                                                            New Delhi - 110001


Bank of America to pay $1.7 billion to MBIA to settle mortgage dispute

Bank of America agreed to pay $1.7 billion to MBIA and will also receive right to buy a 4.9% stake in the bond insurer ending their legal dispute over mortgage-backed securities

Bank of America said it would pay $1.7 billion to bond insurer MBIA (Municipal Bond Insurance Association) to settle mortgage dispute between the two entities. In return, the lender would also get a 5% stake in MBIA, both the companies said.


Bank of America and MBIA had been fighting a battle over responsibility for losses during the 2007-2009 financial crisis.


In return, MBIA would drop demands that Bank of America’s Countrywide unit buy back the soured home loans that the insurer had guaranteed, says a report from Bloomberg news service.


Bank of America, the second-largest lender in the US and its Countrywide Financial unit cut corners to process home loans at high speeds and sold defective and fraudulent mortgages to Fannie Mae and Freddie Mac, the semi-public mortgage brokers, according to a complaint filed late last year by the US Justice Department.


The US government is seeking to recover over $1 billion of losses it said resulted from selling toxic mortgages to government-sponsored enterprises.


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