NEW YORK OPINION EDITORS | USA TODAY NETWORK
12:33 pm EST December 1, 2017
New York’s FOIL law doesn’t have much teeth. But Gov. Andrew Cuomo can increase transparency in government by signing an important piece of legislation. That’s if he supports transparency — a big if. Video by Nancy Cutler/lohud
Government agencies across New York state like to thumb their noses at the state’s Freedom of Information Law. When bureaucrats at state and local departments and agencies receive requests for public information, as defined by the FOIL law, many take a “wait ’em out” approach. They miss deadlines, provide vague responses or say nothing at all — blatantly ignoring requirements of the law — apparently hoping that those seeking public records will get worn out or distracted and will ultimately go away.
Gov. Andrew Cuomo speaks during a ribbon-cutting ceremony for the new Gov. Mario M. Cuomo Bridge, the replacement for the Tappan Zee Bridge near Tarrytown, N.Y. on Sept. 4, 2017
SETH WENIG, AP
They get away with it, too. That’s because New York’s FOIL law doesn’t have much teeth. Government agencies that laugh at its deadlines, or never even bother to respond to FOIL requests, have little to fear.
But Gov. Andrew Cuomo can increase transparency in government across New York by signing an important piece of legislation. That’s if he supports transparency — a big if.
A bill passed by the Assembly and Senate would require that government agencies pay the attorneys’ fees of petitioners seeking public information if a court finds that the agency had no “reasonable basis” for denying a request for public records. This would be a major change because government agencies now assume that members of the public, or even the media, will not want to incur the legal expenses of going to court when a FOIL request is ignored or improperly denied.
But if agencies know that blowing off a legitimate FOIL request could mean having to pay attorneys’ fees, they would have to think really hard about doing so. The public and media representatives would also be more likely to seek public records if there is reason to believe that government agencies feel pressured to follow the law.
A request under the state Freedom of Information Law for any emails sent or received by Gov. Andrew Cuomo since his first day in office turned up zero messages from 2011 through early February 2016. Nor did Cuomo’s office turn over any messages sent through BlackBerry Messenger, a hard-to-trace messenging service widely reported to be a communication tool favored by the Democratic governor.
As Assemblywoman Amy Paulin, D-Scarsdale, who sponsored the legislation (A2750A, S2392A), said: “Very often, the time and effort involved in getting a FOIL request fulfilled is trying enough. A person petitioning an agency through FOIL shouldn’t have the added expense of a lengthy court proceeding as well.” The Senate bill was sponsored by Sen. Patrick Gallivan, R-Elma.
Assemblywoman Amy Paulin
JOURNAL NEWS FILE PHOTO
Here are just a few examples of why the legislation is needed:
• New York State Police did not respond to a March 2017 FOIL request by The Journal News/lohud’s David Robinson seeking incident reports and investigatory records. The Journal News considered the non-response a denial and filed an appeal this month.
• The New York State Office of Children and Family Services has not responded to an Aug. 4, 2017 FOIL request by The Journal News/lohud’s Jorge Fitz-Gibbon seeking records of any incidents, including crimes, at residential treatment centers. The agency’s FOIL officer, when reached by phone on Aug. 24, said the request would take some time. The agency has not responded since.
• The state Education Department offered an incomplete response to a December 2016 FOIL request from the Democrat and Chronicle’s Justin Murphy seeking reports for state discipline hearings for teachers. The D&C also asked for records showing whether cases are resolved in a timely manner. The Education Department provided limited information and has not responded to an appeal filed in July 2017.
• The state Thruway Authority has not delivered on a FOIL filed by our Albany Bureau in September seeking records showing the amount of uncollected tolls since cashless tolls went into effect for the Tappan Zee and Cuomo bridges.
• The City of Mount Vernon’s Industrial Development Agency has not responded to a February 2017 FOIL request by The Journal News/lohud’s Jonathan Bandler seeking all expenditures since Jan. 1, 2016. In May, the city’s Corporation Counsel said that FOIL requests regarding the IDA had to be sent directly to the IDA. The IDA created its own FOIL form the following week, one of which was filed by Bandler. He has received no information.
• Monroe County has ignored an August 2016 FOIL request by the Democrat and Chronicle’s former reporter David Riley, asking for internal county communications relating to a tax abatement agreement and political scandal. The county has repeatedly asked for additional time to “determine rights of access,” but has provided nothing.
• At the Poughkeepsie Journal, a reporter had to wait months for a state Department of Environmental Conservation report after the agency deemed an oil-spill drill on the Hudson River a “success.” The drill was held to assess the state’s readiness to prevent and respond to accidents involving petroleum products. The spill drill in New Windsor area included two mock scenarios. One involved the catastrophic failure of a 5 million gallon heating oil storage tank, leading to a leak of 50,000 gallons of oil into the Hudson River. The other involved a train derailment. These drills have become more important in light of the steady increase of crude oil shipments on the river and via rail along the Hudson. The public should have quick access to the results.
One of the Journal News’ Freedom of Information Law requests denied by Mount Vernon.
FRANK SCANDALE/JOURNAL NEWS
Government agencies, no doubt, would argue that this law could lead to great expenses. But this would only be true if agencies deny or delay FOIL requests without reasonable explanations. It would be up the courts to decide not only that an agency incorrectly denied public information, but that it did so without a reasonable basis. In addition, it would be up to the courts to determine reasonable legal fees.
In other words, a government agency that makes a good faith effort to comply with the law should not have to worry about big legal bills. Plus, it’s the public’s money. Consider this bill a public investment in the right to know.
The legislation is supported by numerous groups that study how government works in New York and understand the day-to-day importance of transparency, including the Brennan Center for Justice at NYU Law, Common Cause NY, Consumers Union, the League of Women Voters of NYS, NYPIRG, the Pace Environmental Litigation Clinic, Reinvent Albany and Riverkeeper.
Cuomo’s office has not yet requested the bill. Advocates are fearful that he will veto the legislation with other bills at the end of the year. If he does, his veto message is almost certain to site concerns about cost. But this isn’t about cost. It’s about following the law and making public records accessible to the public. It’s about transparency, which everyone claims to support, even as many government officials much prefer murkiness of intent and control of information.
Originally Published 6:30 am EST December 1, 2017
Updated 12:33 pm EST December 1, 2017
Original Source: http://www.lohud.com/story/opinion/editorials/2017/12/01/foil-bill-transparency-cuomo-editorial/888190001/