ALBANY COUNTY — This Sunshine Week — when organizations across the country highlight the need for government transparency — the Coalition for Open Government and 24 other not-for-profits are lobbying for four bills that would increase the strength of New York State’s Freedom of Information Law. 

The legislation would incentivize faster responses to Freedom of Information Law requests, compel governments to reveal how they handle these requests, limit the FOIL exemptions offered to businesses, and put the burden of attorney’s fees on governments that are found to have unreasonably denied a request. 

“Transparency is essential for a functioning democracy, but FOIL is broken in New York State,” reads an open letter addressed to the governor and state legislators, and signed by each of the advocacy groups. “State and local agencies routinely take months or years to provide public records requested via FOIL. Not only are agencies incredibly slow to provide records — they often provide a fraction of the records requested and contrive endless excuses, basically daring the public to go to court.”

“New Yorkers should be able to use FOIL to access records to which they are entitled — without delay, runarounds, or perverse agency incentives,” the letter says later. “These bills are urgently needed in order that FOIL fulfills its purpose. The status quo, where indefinite denials, costly litigation, and misuse of exemptions prohibit us from accessing government information is untenable. We urge the Senate and Assembly immediately to pass these bills, and the Governor to sign them.”

Response time

To promote governments’ response times to FOIL requests, Senator James Skoufis, a Democratic senator from Orange County, sponsored a bill that would introduce deadlines for agencies responding to requests and empower records-seekers by allowing them to appeal when deadlines aren’t adhered to. 

Under the current law, agencies are required to acknowledge a request within five days, and from there have a “reasonable” — but otherwise unspecified — amount of time to fulfill or deny it. 

With the proposed amendment, requests would be considered denied if they’re not acknowledged within the first five days, or fully responded to within a new 30-day deadline. 

This would let requesters file an appeal to the head of the agency from whom they’re seeking records, who then has 10 days to justify the denial or provide the records. Unlike the original requests, appeals are monitored by the New York State Committee on Open Government and subject to legal action under the current law.

FOIL reporting

A bill by Senator Brad Hoylman-Sigal, a Democrat representing most of the west side of Manhattan, would add a whole new section to FOIL that requires governments to share the records requests they receive — and the responses they give — with the Committee on Open Government, and the committee to post these logs on its website for public view.

“Though FOIL is a crucial asset for transparent government in New York, we have little understanding of the full extent of its utilization,” the bill’s justification reads. “Agencies subject to New York’s public officers law are not required to report to the legislature or to the public information about how many FOIL requests are received, for what information, and how such requests are responded to … In finally collecting and publishing data about utilization of and compliance under FOIL, this bill would increase government transparency and accountability.”

In many ways, the current iteration of FOIL is self-enforced by those who have an interest in withholding information from the public, as documented routinely by the Coalition for Open Government, which came to be largely as a result of this circumstance. 

Part of the coalition’s activities involve reviewing government sites and sending out tester FOILs to gauge responsiveness and compliance. In 2022 alone, the coalition found that nearly 75 percent of towns surveyed didn’t post meeting documents online, 25 percent didn’t post meeting minutes or recordings, and nearly 40 percent of counties did not acknowledge FOIL requests within five days (while more than a quarter never responded at all), among other data points.

“New York’s open-government laws are very weak,” coalition President Paul Wolf told The Enterprise in 2020. “There is no official or agency that has the power to enforce New York’s Open Meetings Law or Freedom of Information Law. In other states, a citizen can file a complaint with the state attorney general who has the power to sue and fine elected officials who violate the law.”

Exemption renewals

Hoylman-Sigal is also the sponsor of a bill that would alter the way private businesses are able to request the redaction of trade secrets as they come up in public documents. 

Currently, private organizations can request that certain proprietary information be exempt from release through governments and other public agencies to which it submits records. If this request is approved, the exemption remains indefinitely unless the information is specifically requested through FOIL, at which point the public agency holding the record must seek permission from the private organization.

The bill would amend this so that these exemptions must be renewed at least every three years, though the private organizations can set a shorter window; if the private organization does not seek the renewal, the information becomes publicly available.

The purpose of the bill is to streamline certain requests, according to its justification section. 

Attorneys’ fees

Perhaps the most powerful enforcement mechanism introduced so far would be the solicitation of attorneys’ fees from public agencies in cases where a court has determined that an agency was unjustified in withholding records or any other decision counter to transparency it’s allowed to make under FOIL. 

New York state currently requires plaintiffs to not just win their case to be made whole for their legal investment, but to “substantially prevail,” which essentially means winning a separate argument about whether the agency had reason to believe it was correct, according to the bill’s justification.

A bill proposed by Senator John Liu, a Democrat from northeast Queens, removes this “additional hurdle” and awards attorney fees upon a simple victory, making it easier for citizens and organizations to implement legal action when there’s reason to believe FOIL was not adhered to — something that’s currently rare given the substantial financial stake that’s required. 

Other legislation

While not specifically advocated for in the open letter published this week, the Coalition for Open Government has thrown its support behind four other bills that it feels would enhance transparency in the state, according to a legislative priorities report it published last year.

One would amend the state’s constitution to specify the right that state residents have to public information.

The others would require that public officials take at least four hours of training on FOIL and Open Meetings Law, require all public bodies to livestream their meetings and post recordings and maintain them for at least five years, and establish a FOIL and Open Meetings Law review program through the state Supreme Court to process complaints. 

Although not captured by any proposed legislation so far, the coalition also advocates for a mandatory public comment session at public meetings. While public comment periods are common in the Enterprise coverage area, they are currently optional for public bodies.