Fairview Fire District Board Chairperson Withholds Tax Calculations

As part of my continuing coverage of the crisis in the Fairview Fire District, this post is the second in a series stemming from my attempt to analyze the Budget Projections Spreadsheet presented at Fairview's May 26 meeting.

As I reported yesterday, Fairview Fire District Treasurer James Passikoff developed a Budget Projections Spreadsheet which is flawed by some tax data that is incorrect, and some tax data that is meaningless garbage.  These flaws make it more difficult for the general public and even the Board of Fire Commissioners to understand what may happen to Fairview fire taxes in the next few years.  Some stakeholders may have decreased confidence in Fairview officials who develop and present such flawed data.

In attempting to analyze these flaws, I naturally wanted access not just to the tabular data appearing on the Fairview Fire District website, but also to the underlying Microsoft Excel workbook file it was derived from.  That way, I'd be able to see the formulas used to calculate the various entries, and to verify how the calculations were performed.  Accordingly, I asked Fairview Fire District Secretary Cathy Gallinger for this file.

Access Denied

Gallinger informed me that under Fairview's new Freedom of Information Law Policy (FOIL Policy), I can't just ask for this file, but I must submit a written FOIL request to Fairview Fire District Records Officer and Fire Chief Chris Maeder.  No problem.  I emailed my FOIL request to Maeder on 7/8/2011.  Maeder responded that he was on a week's vacation, and was delegating his response to Galllinger.  Still no problem.  Next, Gallinger denied my request, saying, “The requested sheets are not public documents as they are draft worksheets and possibly personal notes.”

Now it's starting to be a problem.  But I wasn't foiled — yet.  I knew that under New York State's FOIL act, an initial denial can be appealed.  In the case of Fairview, the appeals officer is Fairview Board of Fire Commissioners Chairperson Jill Line, who has made openness and avoidance of secrecy a hallmark of her chairpersonship.  Thus, I had some reason to expect a favorable outcome.

Still, in my emailed FOIL appeal to Line, I was careful to state my case as forcefully as I could.  I emphasized that the Fairview Fire District owns the Excel workbook file, that New York's FOIL act provides for the presumption of access, with certain exceptions based on potential for harm.  In the present case, not only is there no potential for harm, but there are benefits of public scrutiny of tax calculations.  But my strongest argument, as I see it, was that the FOIL act is only intended to require government to grant access in most cases.  There is nothing in the FOIL act which prohibits government from granting access to records, if the government chooses to do so.

No matter.  Line's short denial letter, obviously written in the voice of Fairview Fire District Attorney Brad Pinsky, gives two reasons for denial:

1. The spreadsheet formulas I requested are embedded metadata, which is in a grey area of possible FOIL access exceptions.  Line/Pinsky have determined that these formulas “should not” be disclosed.
2. “We further opine that the formulas utilized may constitute a ‘trade secret’ of the accounting firm used to produce the spreadsheets.”

Deconstructing the Line/Pinsky Denial

Reason #1:  It's true that the spreadsheet formulas I requested are embedded metadata.  I don't know whether embedded metadata is in a grey area of possible FOIL access exceptions.  But assuming it is, as Line/Pinsky claim, the letter gives no justification for denying access.  It's just an arbitrary decision.

Reason #2:  The “trade secret of the accounting firm” argument is in my view completely absurd.  In the first place, the spreadsheet was not produced by an accounting firm.  It was produced by James Passikoff acting as a paid officer (Treasurer) of the Fairview Fire District. The fact that Passikoff is also a principal in a CPA firm is irrelevant to his work for the District.  Fire district treasurers are not even required to be CPAs, and most fire district treasurers in New York State are not.  The Fairview Fire District has no contract with Passikoff's accounting firm, as far as I know.  And even if it has, the standard for government contractors regarding FOIL requests is the same as for the government itself.  In other words, a government cannot conceal records from the public just by contracting out the development of these records.  In the second place, the trivial formulas used for calculating property taxes in New York State can be trade secrets?  You gotta be kidding me!

In summary, the denial developed by Pinsky is a contrived legalistic argument of questionable merit.  What I suspect happened is that Passikoff didn't want the Excel workbook released, and Pinsky, as a good lawyer should, found a way to justify not releasing it.

Where was Line in all of this?

In the normal course of human affairs, people in power generally attempt to do what they want, within the various constraints of their office.  That's what it means to have power:  You get to decide.  An outside observer with this understanding of power might reasonably assume that Line wanted to withhold access to the spreadsheet formulas, and she found a way, through Pinsky's contrived legalisms, to do so.

I don't think that's what happened.  I think that, to the contrary, Line wanted to grant access to the spreadsheet formulas.  She just didn't understand how to exercise the power of her office.  Line delegated to Pinsky the task of responding to my FOIL appeal.  That in itself is not a problem.  The problem is that in doing so, Line did not direct Pinsky to attempt to satisfy her wishes.  Instead of saying to Pinsky, “Is there a reasonable way I can grant Rubin's FOIL request?”, she more likely said something passive like, “Please write a response for my signature.”  In the absence of direction from Line, Pinsky did the most reasonable thing under the circumstances:  He executed his task to conform with the wishes of the most manifest source of power:  James Passikoff.

My Appeal Could Have Been Granted

Had Line asserted her authority and directed Pinsky to try to find the outcome she wanted, the dynamics would have been completely different.  Since Passikoff is appointed by the Board, Line's power overrides Passikoff's.  Pinsky, recognizing this, would have tried to execute his task to conform with Line's wishes over Passikoff's.  This would have been easy for him to do in any number of ways.  One way would have been to throw out the ridiculous reason #2, and reverse the arbitrary decision on reason #1.  But even easier would have been to simply throw out the entire FOIL legal question, and just grant access because she can.  To quote from my FOIL appeal to Line, “... if you choose to do so, you can can grant me access to this file, even if FOIL doesn't force you to do so.”

Well, these last two sections are all just speculation on my part, since I don't really know what transpired among the parties.  If the above scenario is incorrect, I'm happy to be corrected.