ALBANY COUNTY — The Albany County Board of Elections is one of several election boards across the state that failed to acknowledge two Freedom of Information Law requests for meeting minutes made last summer, according to the New York Coalition for Open Government.

The not-for-profit advocate for government transparency made the requests as part of an informal study into compliance with the poorly enforced state law. 

On July 14 last year, coalition president Paul Wolf submitted his first FOIL request via email for meeting minutes, he said, but the county board of elections did not acknowledge the request within the five days prescribed by law. Wolf submitted a second FOIL request on Aug. 18, which also said was never acknowledged by the board. 

An Albany County Board of Elections employee told The Enterprise that the board would respond to the paper’s inquiries on Tuesday, Jan. 11. No response was received by publication the next day. 

Wolf had made identical requests to 18 other boards of election within the state and reports that 10 did not respond to the first request, and that only two of those 10 acknowledged the second request. Ultimately, Wolf was successful in obtaining meeting minutes from only 10 out of 19 boards despite the simplicity of the request, he said.

“A pretty pitiful success rate,” Wolf said during a press conference on Jan. 11. 

Implications

Although the coalition’s study and its subsequent report focused on board of election meeting minutes — a somewhat niche subject — its difficulty obtaining them has broad implications for the state of government transparency in New York. 

According to the New York State Committee on Open Government, a government agency that, like the coalition, advocates for public transparency, the Freedom of Information Law has received only minor updates since its adoption in 1978, meaning it’s far behind the modern technologies that have drastically changed how and how capably government agencies can ensure transparency for state citizens. 

Currently, each public entity — from school boards to county boards of election to the governor’s office — is responsible for the FOIL requests it receives and its determinations are not necessarily reviewed by any outside agency. Anyone who is denied a request can appeal the decision but, while agencies are obligated to notify the Committee on Open Government of appeals, the responses are made by whatever person or group is in charge of the agency, resulting in a kind of self-enforcement. 

Because the Committee on Open Government has no enforcement authority itself, it’s up to private citizens or groups to challenge inappropriate denials in court through an Article 78 filing — the mechanism that allows citizens to challenge government decisions. Naturally, though, these proceedings can be disproportionately expensive for an individual, and, particularly in Berne, a rural Helderberg Hilltown, where political tensions have been high, residents have insinuated that their local governments take that into account when making determinations. 

Other than going through the legal system, citizens denied information can request an advisory opinion from the Committee on Open Government to try to put pressure on whatever agency they’re seeking information from. But without any real authority, committee opinions can be easily ignored if an agency feels confident in its own decision or that it won’t be subject to a private lawsuit.

The trouble is not just with FOIL requests, since the law touches on many different agency functions. Locally, town boards have been known to abuse executive session privileges, which are in place to allow boards to discuss sensitive subjects like legal proceedings or personnel discipline.

To enter into executive session, a board must justify the decision to the public using as much detail as possible. However, despite the presence of legal counsel, many boards offer only a summary justification, such as “personnel matters” — which is not one of the reasons for an executive session listed in the Open Meetings Law — leaving it unclear what exactly is being discussed. 

In Berne, former town board member Joel Willsey, who had been the only Democrat on a Republican-majority board, accused his colleagues in 2020 of holding an executive session under false pretenses so that they could “harass” him away from the public eye, citing only “personnel matters” to the public. When Willsey confronted town attorney Javid Afzali about the session’s illegality, Afzali reportedly challenged Willsey to take the town to court. 

The Berne Town Board, of its own accord, later voted to release a video of the executive session. 

Failure to comply with the Freedom of Information Law is not always so dramatic nor is it always evidence of deliberate manipulation of the law. Some boards — particularly in the Hilltowns, where members are only part-time representatives and face a much lower barrier to entry than in towns like Guilderland — simply don’t know the law’s nuances. 

In Knox this year, one board member stated falsely that boards are obligated to discuss personnel matters only in executive session. 

The Enterprise also found last year that several boards had not begun posting meeting minutes online within two weeks, as has recently been mandated, and that officials are not well-notified of pertinent changes to state law.

“As a courtesy, we posted an item on the home page of our website notifying public bodies of the changes to the Open Meetings Law,” assistant director for the New York State Committee on Open Government Kristin O’Neill told The Enterprise at the time. “But it is the responsibility of every municipality and unit of local government (there are thousands of them across the state) to stay aware of changes to State law that may affect them.” 

Calls for reform

To address the difficulty in enforcing this crucial law, both the committee on and coalition for open government have suggested that New York State constitute a “centralized FOIL oversight system” that would have a more robust authority than the committee currently does. 

In an annual report published in December, the committee acknowledged several out-of-state models, including in Connecticut, where “a person seeking documents who believes an agency has failed to disclose material required by law to be public can appeal the agency’s action to the FOI [Freedom of Information] Commission, an independent body appointed by the Governor.”

That commission reportedly has the authority to “do any necessary fact-finding,” including reviewing the requested documents in private, the report says. “Other states have adopted variations on this approach, vesting FOI appeals in a single person or single judge, who similarly develops expertise and is viewed as a reliable arbiter of FOI disputes,” it also says. “In Pennsylvania, for example, all FOI administrative appeals are decided by a single Office of Open Records staffed by an attorney from within the Attorney General’s office.”

The report also says it’s time for New York State to understand the power of the technologies it now uses, which could potentially turn formerly tedious or resource-intensive procedures into automatic ones.

“With modern online technology the cost of proactive disclosure of routinely requested, non-exempt documents is minimal, and making information available on a website saves time and money that would otherwise be required to respond to specific FOIL requests,” the report says.

One bill noted in the report would have public bodies preemptively publish information that would otherwise be subject to a specific FOIL request, so long as the information is or might be “of substantial interest to the public.” That bill, introduced by Democratic State Senator James Skoufis, is currently in committee. 

However, that bill would place the decision-making in the hands of the agency that controls that information already, and whether information is “of substantial interest” would be determined by those who may have incentive to keep it tucked away. 

Another bill, also in committee, would have the state’s Committee on Open Government study the obstacles and impact of proactive disclosure. The committee, however, stated that it would prefer to see that handled by the legislature. 

“The Committee supports the objective of this bill and believes that such a study could improve government transparency,” the report states. “However, these tasks are best suited for the Legislature itself. As currently structured, the Committee lacks the staffing and funding to complete these tasks.” 

The final — and arguably most important — general suggestion the committee made is that the state beef up penalties for non-compliance. 

“Greater incentives are needed to promote transparency,” the report states. “Assemblymember [Steve] Englebright proposed legislation providing that where a court finds that an agency had no reasonable basis for denying access under FOIL, a civil penalty of not more than $1500 may be imposed. Proposals that would make tangible sanctions for non-compliance mandatory and more swiftly applied warrant serious consideration.”

Until that change is made, however, public entities are watched almost exclusively by private persons and groups, such as the Coalition for Open Government, in a guerilla style. 

“Sadly, as a result of this report, with 53-percent compliance, there will be no consequences,” Wolf said during the Jan. 11 press conference. “There will be no penalties, there will be no punishment. All we can do is try to embarass people to [get them] to comply with the law. And, frankly, we’re getting a little tired of, now for several years, issuing report after report of non-compliance with the law. The time really has come to create an entity with enforcement powers.”