Friday, November 4, 2011

Update 12 [See Note at End]: Blogger Prevails in Using FOIL to Force Public Video of a Lecture by NYS Geologist Smith

 NYS Geologist Taury Smith in a 
screen shot from a Sept. 2010 
YouTube video — prior to the 
clampdown by State Ed.

State-paid geological expert Dr. Langhorne "Taury" Smith — current holder of the 175-year-old title of New York State Geologist — gave a lecture on the controversial bedrock known as Marcellus Shale April 7 at SUNY's University at Buffalo.

But video covering both his talk and the Q&A afterwards have so far been mysteriously withheld from public view.

A web page here from UB's Department of Geology breaks down the schedule for all eight speakers in this Spring's Marcellus Shale Lecture Series — including links to video and graphic files from all but the most recent, or still-pending, talks.

Except for Smith.

Yes, his 63-slide PowerPoint is there.  But not the video.  Instead, anybody who missed Smith's talk and wants to catch up finds an asterisk — as of the date of this writing — leading to this vaguely worded apology:  "We are sorry but the talk by Langhorne 'Taury' Smith cannot be made available at this time."

What's all this about?

Back on March 14, Smith made some seismic waves in the Empire State's currently touchy political landscape by going on record on the Marcellus Shale question with James M. Odato of the Albany Times-Union.  After more than two years of either nobody in the media asking, or him not being ready to give much of an answer, Smith came forth with suggestions that much of the activist-led hullaballoo over hydraulic fracturing has been exaggerated, distorted, disingenuous, or just plain wrong.

The backlash was immediate.  Smith works under the New York State Museum, a wing of the state Education Department, which is where staffers from the state's at-one-time independent Geologicial Survey wound up after an administrative shakeup in the year 2000.  Stunned by Smith's coming out of the closet, viz-a-viz his orientation regarding fracking, State Ed brass immediately muzzled him through administrative policy:  No more talks with reporters without a PR flack running interference.  Odato, on March 28, also had the scoop on this deliciously against-the-grain turn of events.

Before and since, however, Smith was apparently still free to give public lectures on the ordinarily dusty topic of geology — even the geology of Marcellus and Utica shales — without requiring a clipboard-toting escort from Public Relations. 
On March 11, Smith gave a talk at a day-long forum held in Blasdell, NY, as evidenced by this newsletter page from the host Penn Dixie Paleontological Outdoor Education Center/Hamburg Natural Historical Society.  Under New York's Freedom of Information Law, NY Shale Gas Now more than a month ago requested a copy of Smith's presentation out in Western New York — in whatever recorded form that may take.  But the request seems to have been overlooked by minions with the state Ed Dept. (or else it simply got confused with a second similar request, as follows).

On April 7, Smith spoke at UB's series, though it's unknown whether he simply gave the same talk all over again.  Lodging another FOIL request for records related to this appearance, NY Shale Gas Now recently received a CD-burned copy of Smith's PowerPoint overheads.  But it turns out to be the same file as what's already posted on the web on UB's Geology Department pages.  Not included are Smith's written version of his talk, or digital video of the actual appearance. 

We shall have to see about an appeal.  

But it is an interesting twist, don't you think?  The academic community is ordinarily exceedingly touchy — and rightly so — about issues of intellectual freedom, censorship, and so on.  And yet here we find an eerie, deafening silence over what the bureaucrats have done — and are doing — to Smith.

One final historical note, which just kills me, every time I think about it:  James Hall, the 19th Century geologist and paleontologist who actually first described and named Marcellus Shale for the scholarly record, is a predecessor of Smith's as New York State Geologist.  More interesting history here.

Update 1:  On May 20, after having some morning coffee and thinking it over, I decided to skip trying to follow through with the State Ed Dept. — and instead lodged a FOIL request with UB.  I made you guys a copy of my request letter here.

Brian T. Hines, Records Access Officer
Human Resources/Employee Relations
120 Crofts Hall
(SUNY) University at Buffalo

Re:  Freedom of Information Law Request for Records [lodged by email]

Dear Mr. Hines:

Under the provisions of New York's often-cited Freedom of Information Law, Article 6 of the Public Officers Law, I hereby request a copy of records, or portions thereof, pertaining to video files covering a lecture — as well as the question and answer period afterward — given by New York State Geologist Langhorne "Taury" Smith on April 7, 2011, at the University of Buffalo, as put on by that institution's Geology Department.

Should you require further details as to the nature of these records — or evidence of the existence of these records — please check the second row of the table on the attached PDF, referencing Smith's lecture entitled, "Geology of the Black Shales of New York."  Note that this PDF functions as a record of a UB Geology Department web page as it reads as of this writing, and you can see the current, online version of this page here:

I understand there may be fees for duplication of the records requested, should that prove to be necessary.  However, were the video files in question to be simply made available to the general public on the web — in the same fashion as the other lecturers have been given such diligent coverage — that would certainly satisfy my request for access, since I do have a pretty workable Internet connection.

As you know, the Freedom of Information Law requires that an agency respond to a request within five business days of receipt of a request.  Therefore, I would appreciate a response as soon as possible and look forward to hearing from you shortly.

If for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name and address of the person or body to whom an appeal should be directed.

Thank you very much!

Andy Leahy

Blogging and Tweeting as:  NY Shale Gas Now 

Update 2:  On Thursday, May 26, at my nudging, Buffalo News business section columnist David Robinson swung into action with a few phone calls for a Sunday column on this topic.  To my knowledge, Robinson is the only mainstream media person to have actually sat through and reported on Taury Smith's April 7 UB lecture.  Robinson's prior column can be gleaned here.

Robinson appears to have had his column already written -- and he was out of the building, ready for a long holiday weekend -- before I even had a chance to email him back.  But this is part of what I wrote him back:

Hi David,

Thanks for taking this on.

Yes, I have received this canned preliminary FOIL response from UB:


As for why the video is being withheld, I think there are probably only two people who could give you an honest answer on that -- Taury Smith himself, but he's obviously no longer able to speak freely, and Marcus Bursik, chair of UB's Geology Department, organizer of the Marcellus Shale lecture series, and presumably a tenured SUNY faculty member.

It does seem pretty nutty -- as though somebody out there is simply not thinking straight. You're the only media person I know of who actually attended the talk. Was Dr. Smith falsely shouting "Fire!" in a crowded lecture hall?

To be totally fair, last week I sent Dr. Bursik a couple emails, and I left him a voicemail, inviting him to give us all an innocent explanation, if one exists. Maybe the camera ran out of battery power. Maybe a freshman spilled hydrochloric acid on the hard drive holding the video files. But Dr. Bursik hasn't gotten back to me. Again, it could be he's already left town for the summer, and he's out in the field, taking the pulse on a volcano someplace -- I just don't know.


Update 3:  Sunday, May 29, in the middle of a long holiday weekend, Robinson's column runs here.  Copy'n'paste anti-frack free-lancers immediately start to fill up the comments section with intentionally spun drivel.  But will the rest of the media flock take any notice?  If it was a so-called green activist, similarly put down, all bedlam and mayhem would immediately break loose across the hillside.  Here, though, I bet they simply continue to ruminate passively, staring blankly at the distant horizon -- or at the hind ends of their nearest peers.

Update 4:  Tuesday, May 31, I follow up with a letter to the editor of The Buffalo News.  That very evening, they have somebody dutifully call me at home in order to confirm that I am who I say I am, and that I'm at where I say I'm at.  But, two days later, still no letter appears.

To the Editor:

Thanks to David Robinson for his May 29 column, “Why muzzle pro-fracking geologist?”  This was about a public lecture given April 7 on the geology of black shales by New York State Geologist Dr. Langhorne “Taury” Smith -- the video for which remains mysteriously withheld by host SUNY University at Buffalo.

I am apparently alone in feeling blown away by this situation -- which looks a lot like an unthinking, white-knuckled attempt to suppress both expertise and information.  The two institutions involved (SUNY and the State Education Department) are supposedly devoted to education -- and yet they now quietly collaborate in order to prevent landowners, taxpayers, and citizens of New York from learning the views of somebody we employ specifically for his geological expertise.

Professor James Hall -- the father of New York's Geological Survey, Smith's 19th Century predecessor as New York State Geologist, and the dude who actually named Marcellus Shale -- is probably banging the lid on his coffin right now!

On the Marcellus shale question, and the Utica shale question, there are well-meaning, well-educated people in New York State who would prefer that we all believe the emotionally manipulative filmed views of a banjo player-slash-theater director, than to allow the intellectually curious among us to hear an hour-long shale gas lecture on digital video from a state-employed PhD in geology.

You ask me, I think we should have way more respect for the people who do the science.

Tell me again -- what country is this?

How long have I been asleep?

What do we have SUNY for -- if this is how we treat the sort of experts they graduate?

Andy Leahy

SUNY Oswego (Bachelor's, Political Science, '85)

SUNY ESF (Master's, Environmental Science, '95)

Update 5:  Friday night, June 3.  I spend some time reading, writing, and tweeting — and updating the conversation on some web sites devoted to what now ranks as the Marcellus landowners' cause.

In the short run, I can't tell whether it makes any difference at all.

But I can tell you that I got New People.

Like this:

MT @NYShaleGasNow: Bureaucrats openly censor NYS Geologist, and there is no recourse — except for this #natgas #tcotFri Jun 03 23:36:04 via Twitter for BlackBerry®

Or like this:

@NYShaleGasNow Andy, the willful ignorance, drama and false claims on this issue are stunning.  Appreciate what you're doing.Sat Jun 04 01:08:42 via Echofon

It occurs to me suddenly that the powers that be in New York State have shocked me with their zeal for control.  This is about freedom of information -- and freedom of knowledge.  And, it turns out, I can never be on the team which opposes these things -- the team that suppresses freedom.

I break ranks.

I walk.


Update 6:  Sunday, June 5.  My letter runs here a week later in The Buffalo News — which stands to reason, since it's a remark upon an item only Sunday readers would have had a chance to see as it originally appeared.  Another letter writer, Larry Beahan, takes the other side in this debate — but with an outrageous attack upon Smith's professional background that runs thick with an angry, half-blind, eyebrow-scrunched (though well-crafted) cynicism.  I gather from the comments that this is how Beahan and the enviro's do things out in WNY.

Update 7:  Previously, on May 25, 2011, the Records Access people from SUNY UB had sent me a canned email indicating they would need 20 business days to get their heads wrapped around this situation.  You may not believe this, but I actually marked my calendar to the effect that there should be something popping by, say, June 23. 

Well, I got this email today:
Subject:     FOIL Request - File #:  11-035
Date:         June 22, 2011 5:27:47 PM EDT

Dear Mr. Leahy,

This agency has determined that we are unable to respond to your request within the twenty business day timeframe, due to the difficulty in retrieving the information requested.  It is anticipated that those records that you have requested that are disclosable under FOIL and the Personal Privacy Protection Law will be provided to you within twenty business days from the date of this email.

Thank you for your patience in this matter

Brian T. Hines
Records Access Officer
Employee Relations
University at Buffalo
Please consider the environment before printing this e-mail.
So — unless I'm being way too hopeful in my interpretation of the English language — it looks like they're going to have to cave under the pressure of my old reportorial friend FOIL, and release the damn Taury Smith video, already.


Only 20 more business days!!! 

...Now, where is my calendar?

Update 8:  Here's my next email from UB: 

Subject:   RE: FOIL Request - File #:  11-035
Date:       July 21, 2011 12:21:51 PM EDT

Sent on behalf of Brian T. Hines
Records Access Officer


We are unable to respond to your Freedom of Information Law (FOIL) request within twenty business days from our last email because of the complexity of the information requested.  It is anticipated that those records that you have requested that are disclosable under FOIL and the Personal Privacy Protection Law will be provided to you within twenty business days from the date of this email.

Thank you for your patience in this matter.

Brian T. Hines

Mary Ann Lawson
Employee Relations
University at Buffalo

Update 9:  And then, 20 business days later, they did it again!

Subject:  FOIL Request - File #:  11-035
Date:       August 18, 2011 1:22:49 PM EDT

Sent on behalf of Brian T. Hines
Records Access Officer


We are unable to respond to your Freedom of Information Law (FOIL) request within twenty business days from our last email because of the complexity of the information requested, and the difficulty in retrieving the information requested.   It is anticipated that those records that you have requested that are disclosable under FOIL and the Personal Privacy Protection Law will be provided to you, within twenty business days from the date of this email.

Thank you for your patience in this matter.

Brian T. Hines

Mary Ann Lawson
Employee Relations
University at Buffalo

Update 10:  By email, September 16, 2011:

NYS Committee on Open Government
Executive Director, Robert J. Freeman
Department of State
One Commerce Plaza
99 Washington Avenue, Suite 650
Albany, NY 12231

Mr. Freeman,

Can you help me out on this?

I'm linking a blog piece here, which covers all the particulars of this as-yet-unfulfilled FOIL request:

In short, I'm looking to compel the release — believe it or not — of a video record of a public lecture on the geology of Marcellus shale given at SUNY UB, April 7, 2011, by NYS Geologist Dr. Langhorne "Taury" Smith.

So far, UB has put me off three times, not counting their original reply.

Let me ask you something — can they simply do this indefinitely, under the law?

Andy Leahy

Blogging and Tweeting as: NY Shale Gas Now

Update 11:  New York State's publicly employed FOIL watchdog tells me SUNY UB must release this video under the law, in an email which I immediately forwarded to the local records access folks.

Subject:  RE: Andy Leahy's 5-20-2011 FOIL request of SUNY UB
Date:      September 19, 2011 10:11:08 AM EDT

Dear Mr. Leahy:

First, as you may be aware, the term “record” is defined in §86(4) of FOIL to include “any information kept, held, filed, produced or reproduced by, with or for an agency….in any physical form whatsoever…”   Therefore, if the video at issue is maintained by SUNY, which clearly is an agency, it is constitutes an agency record subject to rights of access conferred by FOIL.

Second, if the video captures an event that was open to the public or  to students and could have been seen by anyone present, I believe that it is accessible under FOIL.  In short, none of the grounds for denial of access would be applicable.

And third, an agency cannot repeatedly delay its response to a request.  Further, if an agency fails to abide by the time limits for responding, the request may be deemed denied, and the applicant has the right to appeal.  The person designated to determine appeals at SUNY is Geraldine Gauthier in SUNY’s Office of Counsel.  Attached is a description of an agency’s duties concerning the time within which agencies must respond to requests.

I believe, too, that we communicated when you were a student at SUNY/Oswego.  Am I correct?  I’ll be there on Thursday evening to speak.

Robert J. Freeman
Executive Director
Committee on Open Government

Update 12:  As of September 21, Hines of SUNY UB had written to apologize for letting this slip through the cracks.  As of October 4, the necessary DVD was available for my in-person pickup — but way out in Buffalo.  As of October 11, the DVD was in the mail to me in a postage-paid envelope supplied by me.  When I got it, however, I found the DVD would only play on my TV setup, but not on my computer, nor could I figure out any alternate way to get it transferred.  Eventually, I admitted technical defeat, and hired a specialist to convert it into a form my computer could handle.  That's what I killed most of yesterday and today working on.  Anyway, I have created a separate blog post, which links to the videos of Dr. Smith's lecture and his question-and-answer session, both now freely available on YouTube.

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