Increasing transparency and accurately tallying FOIL requests would reduce the burden on agencies, advocates argue.
Meaghan M. McDermott
Democrat and Chronicle
State and local government receive more than 200,000 FOIL requests annually
Courts have begun allowing agencies to use the volume of requests as an excuse for delaying responses
A 2018 report from the Center for Public Integrity gives New York a D-minus when it comes to open government
Good government groups are hopeful that the ouster of the state's transparency guru in June after he was credibly accused of "sexually inappropriate" behavior could aid a push for stronger laws to better protect the public's right to know.
Robert Freeman's "departure is a perfect opportunity to reassess Freedom of Information Law as a whole and think about how do we make it work better," said John Kaehny, executive director of Reinvent Albany, an advocacy group that fights for increased transparency and accountability in state, city and local governments.
Freeman was fired in June.
Picking Freeman's replacement is left to Gov. Andrew Cuomo, who has not yet made any public announcement of potential candidates to lead the Committee on Open Government.
The unit, housed within the state Department of State, oversees and advises the government, public and news media on Freedom of Information, Open Meetings and Personal Privacy Protection laws. A DOS spokesman said the agency is currently being headed by Assistant Director Kristin O'Neill, who joined COOG in 2015.
Last year, the committee fielded more than 3,400 telephone inquiries from people seeking help with getting government information and responded to more than 1,600 written requests for assistance.
Volume of FOIL requests is huge
During his 43 years heading up COOG, Freeman was instrumental in championing and drafting laws that promote greater transparency and access to government-held information.
But COOG is still largely been a paper tiger that lacks the muscle to enforce open meetings and freedom of information laws. The agency does issue advisory opinions about whether or not agencies complied with the law when denying FOIL requests or conducting meetings, but ordering compliance is generally left to the courts.
Kaehny said it's unlikely the governor would give COOG the ability to order state agencies and authorities to comply, but there is plenty of room for the state to adopt some best practices that would create greater transparency for the general public.
"One of the main reasons FOIL is not working in New York is the volume of requests is so huge that even when agencies want to comply with the law they find it difficult to do so," he said. "And with volume that great, agencies have an an excuse to not do a very good job complying and the courts have begun allowing agencies to use their volume as an excuse for delaying responses."
While there's no official tally, Kaehny said his group estimates state and local government receive more than 200,000 FOIL requests annually. There should be an official tally, he said, and that data should be used to figure out what information people most commonly request so agencies can make that information available proactively.
"That could be a huge time savings to the public and a big money savings to agencies if they were methodical," he said. "The bulk of things people ask for are not complicated or politically sensitive … and everyone gets gummed up in the system where FOIL officers are drowning in stuff and it just doesn't work."
State gets poor report card
A 2018 report from the Center for Public Integrity gives New York a D-minus when it comes to open government. Weighing heavily in the grade is an "F" the state gets for "lacking entities to monitor the application or access to information laws" and a poor track record of making sure citizens "receive responses to access to information requests within a reasonable time period and at no cost."
Tim Hoefer, executive director of the Empire Center for Public Policy said there are some simple legislative fixes that would benefit most people who utilize FOIL and Open Meetings Law. As part of its See Through NY transparency efforts, his group routinely requests government information pertaining to contracts, salaries and pensions. And even though Empire Center requests the same information year after year, some agencies either put up the same fight year after year or continue to foot-drag turning over the information. For example it just took Empire Center nine months to get access to New York City pension data it has been requesting annually for a dozen years.
"There's no excuse for that," said Hoefer. "But there's nothing I can do about it short of filing (a lawsuit) and then after I've filed, the agency can just provide the data and I have no recourse in the court because I've already gotten my relief."
He'd like to see language about timelines tightened up, and for it to become mandatory for courts to make agencies pay attorney fees and court costs if they are found to have violated the law.
"You can tighten the timeline language, in some places changing 'may' to 'shall,'" said Hoefer. "And require the courts to award fees and costs when an agency has behaved badly."
It's easier for groups that have power — such as Reinvent Albany, the Empire Center or legacy media organizations — to muster the resources for a court fight over FOIL, but the point of the law is that it is meant to benefit everyone, said Hoefer.
"They need to figure out a way to put some teeth in the law without making it burdensome for agencies," he said. "It's not that we want entities to have to do things that are burdensome, but we need to make sure that Joe Smith down the street, the regular New York taxpayer, can get the information he is seeking."
A fix Kaehny would like to see is a tracking system similar to one already used by New York City. There, people who have filed FOIL requests can easily check on the status of their requests. The state's Open FOIL initiative — a centralized online location to file information requests with more than 50 state agencies and authorities — is a step in the right direction but could be dramatically improved, he said.
"The website doesn't change the plumbing of the system, it just changes the form used to access it," he said.
Either way, changes to the existing law or system in place will require not only a forward-thinking leader for COOG, but also buy-in from legislators and the Governor.
And that will require pressure from the public, said Hoefer.
"Having access to our government's data collectively as taxpayers is one of the most important parts of being able to ask good questions about what the government is doing, and if you can't ask good questions you can't understand what's going on," he said. "Transparency is one of the basic tenets of our democracy."
MCDERMOT@Gannett.com
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