How should school districts respondto large FOIL requests on purchasing? |
On Board Online • September 21, 2015
By Cathy Woodruff
Senior Writer
Your school district or BOCES may receive a request from a private company for a computer file containing years of purchasing information. That has sparked questions about the obligation of school districts to comply with such requests.
Spoiler alert: If you have the records available, experts say you probably have to disclose them.
One company that has been asking districts in New York State for information is SmartProcure, a Florida-based company that claims on its website to have "the largest government purchase database out there."
Its customers include businesses that bid on government business. The customers gain access to the information through paid subscriptions, company founder and CEO Jeff Rubenstein said in an interview with On Board.
Nassau BOCES recently answered a FOIL request by SmartProcure for five years of purchasing records, and later received some phony invoices.
Is it possible that cyber criminals used SmartProcure's data to craft the fake invoices sent to the BOCES? Rubenstein said his company's internal investigation found "no linkage" between the bogus Nassau BOCES purchase order and SmartProcure's information request.
"We would take that very seriously, any improper use of our data," Rubenstein said.
While SmartProcure and other companies have business reasons for making FOIL requests for extensive school district records, such requests can unnerve school and government officials. They worry about sharing large amounts of data with anyone savvy enough to file the proper paperwork.
Many district and town clerks have sought guidance from the state's leading expert on FOIL: Robert Freeman, director of New York State's Committee on Open Government, who will be speaking at NYSSBA's Annual Convention in October.
In New York, there is no specific prohibition on commercial use of data obtained through FOIL, Freeman told On Board. "The purchase orders are all public." What third parties do with the information is up to them, he said.
Nor is there any limit on the scale or scope of FOIL requests, leading to what Freeman calls "shotgun requests."
It's easy to imagine how detailed purchasing data - company names and other information about vendors, products purchased with prices and dates, staff contact names, contract and product codes and more - might be used for nefarious purposes.
For instance, criminals could use such data to create fraudulent purchase orders that trick suppliers into shipping expensive merchandise.
In two articles for The Recorder, published by the New York State Town Clerks Association, and an interview with On Board, Freeman offered some advice for records access officers who receive requests from SmartProcure or others.
"In truth, even though I work for the Committee on Open (not closed) Government, I recognize that there are problems associated with these kinds of requests," Freeman said.
Freeman pointed to one restriction on commercial use, saying a denial of access would be proper "if a list consists of the names of individuals and their home addresses that is sought for solicitation or fund-raising purposes." [On the form an employee filled out for Nassau BOCES, SmartProcure checked a box certifying that the purpose of examining the records "is not to obtain names and addresses for commercial or fund-raising purposes."]
Sometimes, Freeman noted, the purchase order requests use words and phrases, such as "line item details," that are largely unfamiliar to New Yorkers.
"If you don't know what they mean, you can't effectively respond," Freeman said. Poorly worded requests may not meet the legal requirement to "reasonably describe" the records sought.
Some districts keep purchasing records by company name, while some may assign a vendor ID number. If a FOIL request asks for data on vendor ID numbers, it may be the case that "you can't give what you haven't got," he said.
Similarly, Freeman said, a government agency might not maintain the records sought in an electronic format that includes each of the items requested, and a clerk wouldn't be obligated to create a new record containing all of the items. Sometimes, old documents already have been destroyed or packed away and cannot be retrieved with reasonable effort, he added.
"That's the 'tough noogies' principle or the Rolling Stones principle," said Freeman. "You can't always get what you want."
In at least one other state, there is talk about a need to update the open records law. Emily Leader, senior deputy general counsel for the Pennsylvania School Boards Association says she has heard from many school officials who are uneasy about fulfilling FOIL requests from commercial enterprises that make money by reselling the data.
School officials are wondering whether the public is benefiting from the disclosures and whether the companies are "really using this for open government purposes," she said.