ALBANY COUNTY — For the New York State Coalition for Open Government, there are no two ways about it: The state of open government in New York is abysmal. 

On April 20, the not-for-profit issued a report declaring that there is an “open government crisis” in New York, which first adopted its open meetings law in 1976 — the last state to do so, the coalition notes — and has struggled to enforce the law in a meaningful way ever since. 

Reflecting this crisis is data created by the coalition through a series of studies in which it surveys local government and other public agency websites, and submits Freedom of Information Law requests to gauge how well different public bodies adhere to various transparency requirements. 

In 2022, the coalition found that 72 percent of towns were not posting meeting documents online, that 25 percent were not posting meeting minutes or recordings of meetings, that nearly 40 percent of counties did not respond to FOIL requests within five days, and that it took an average of 25 days to receive a copy of county policies, and an average of 49 days to receive meeting minutes from county boards of election. 

“There is an open government crisis in New York State as existing laws are repeatedly ignored without any consequences,” the coalition states.

Enforcement in New York

In the report, the coalition calls on the state’s attorney general to step up enforcement of transparency laws, but says that previous attempts to make the case directly to the attorney general and her staff have been unsuccessful, with staff reportedly arguing that the attorney general is not authorized to enforce open-government laws without additional legislation. 

The Office of the Attorney General declined to comment to The Enterprise on any discussions with the Coalition for Open Government, and also declined to answer any questions from The Enterprise about the attorney general’s views on enforcement and whether it’s aware of the extent to which public agencies seem to disregard transparency laws. 

“I’m sure you know this, but unlike many other states, New York actually has an entire office for the application of this law, and this is their responsibility,” a public information officer told The Enterprise, referring to the New York State Committee on Open Government. 

The committee, however, only has the authority to issue advisory opinions, which are not legally binding, leaving enforcement up to citizens and companies who choose to bring a public agency to court. 

Lawsuits, however, are an expensive and inefficient solution, and they do not come with the guarantee that legal costs will be covered in the event of a victory, the coalition states. 

According to the Reporters Committee for Freedom of the Press (RCFP), a not-for-profit, “fees are somewhat rare and have generally been limited to instances where an agency has flagrantly disregarded its disclosure obligations under FOIL.”

The attorney general is not viewed by the RCFP as having a role in transparency disputes, except to defend public agencies in court. 

In addition to increased enforcement from the attorney general, the coalition calls for a constitutional amendment regarding the right to open government, open government training for public officials, mandatory attorney fees, a hearing-officer system, annual freedom of information reports from each state agency, and a restructuring of the Committee on Open Government so that the governor has less control over its 11 board members, along with increased funding for the committee. 

In its 2022 annual report, the Committee on Open Government recommends several reforms intended to streamline the Freedom of Information process, including enforcement by the attorney general, improved FOIL data collection, additional proactive disclosures, and more specific language in the laws.

Enforcement elsewhere

Other states have more robust systems of enforcement that require less of citizens. 

In Arizona, for instance, an Ombudsman-Citizen Aide receives complaints and may choose to investigate a particular issue and notify the governor, legislature, or a prosecutor of its determination, according to the RCFP. 

Connecticut also has an ombudsman, the RCFP states, whose job is to settle complaints before they go to court. 

The RCFP says Connecticut also has a five-member Freedom of Information Commission, which is authorized to “investigate allegations, including the power to hold hearings, administer oaths, examine witnesses, receive oral and documentary evidence, subpoena witnesses, and require the production of books and papers it deems relevant to the investigation.”

The state also can impose fines of up to $1,000 for those who deny access to records without a reasonable justification, the RCFP says.

In Missouri, fines may be $5,000 if a violation is found to have been deliberate. In Washington, a fine of up to $100 can be issued for each day a person was denied the right to inspect a public record. 

Arkansas goes so far as to make any person who “negligently” violates that state’s freedom of information law liable to criminal charges that may come with a $500 fine and/or 30 days of imprisonment, according to the RCFP. 

Colorado; Washington, D.C.; Georgia; Maryland; Nebraska; North Dakota; Texas; Utah; and West Virginia all allow violators of their respective transparency laws to be charged with a crime, and more states allow for charges in cases where a person destroys or alters public documents, the RCFP says.

The RCFP did not respond to questions from The Enterprise about which models it views as most effective in increasing transparency in time for publication.