By SHERRY HALBROOK
The state Supreme Court in Albany County has directed the state Department of Transportation to turn over to PEF portions of a “draft” private audit under the Freedom of Information Law (FOIL).

PEF sought access to the audit which a private auditing firm, KPMG, performed at DOT’s request after audits by both state Comptroller H. Carl McCall and his predecessor sharply criticized the department for wasting state tax dollars on consulting engineers. Instead, they recommended hiring more state engineers to do the work.

The union has hammered DOT for years on this point and has convinced state legislators to add money to state budgets for DOT to hire more engineers. But the agency leaves many engineering positions vacant and continues to contract with consultants for huge amounts of engineering work.

“Clearly, the Transportation Dept. hoped that this private audit’s findings would contradict the state comptrollers’ criticisms and be the basis for a rebuttal,” says PEF President Roger Benson. “But apparently, that was not the case. And when DOT saw the draft of the final report from KPMG, it cancelled the audit even though the department had already incurred 98 percent of the cost.”

When PEF tried to get a copy of the KPMG audit, DOT refused. It claimed that the audit only existed in draft form and was, therefore, not subject to FOIL.

In April 2000, PEF sued DOT in state Supreme Court in Albany. The union cited precedent showing that the statistical and factual information cited in the draft audit was subject to FOIL.

Judge Stephen Ferradino agreed, and personally inspected the audit to determine which parts of it were available under the FOIL.

The state did not appeal the ruling.

PEF associate counsel Dionne Wheatley represented the union in this case. She praised Judge Ferradino for “his willingness to take the time to read this voluminous audit and determine which pages were subject to FOIL. Not all judges would be willing to exert that much personal effort to see that justice is done in such a case.”

What did the study show?

The facts agree with those in the comptrollers’ reports. Consultants cost the DOT 75 percent more than civil servants. Bringing that work back into the hands of PEF members at DOT would save the state $75 million per year.

“The state Freedom of Information Law only works effectively when the public body approaches it in good faith,” says PEF Director of Field Services, Roger Scales. “In this instance, DOT knew or should have known that factual and statistical information is subject to FOIL.”

“Public authorities, such as DOT, must become more responsive to the citizens who pay the bills and not use the taxpayers’ own money to prevent them from getting what is rightfully theirs,” Scales adds.

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