It’s Sunshine Week — a 20-year tradition created by the American Society of Newspaper Editors to push for government transparency, especially stronger public records laws. This ain’t your average Sunshine Week — press freedoms and the principles of open government are under extraordinary assault in America. Compounding that, here in New York, our state public records law, the 50-year old Freedom of Information Law (FOIL), is basically broken.
FOIL is the single most important transparency tool New Yorkers have to keep the government from hiding what it is doing. Much of the investigative journalism you read in the Daily News and other news sources is based on the public records government agencies release in response to FOIL requests from reporters.
Unfortunately, New York State and NYC agencies are not following FOIL. Instead of the 20 business days required in law, it is common for state and city agencies to take months or even years to provide the “public” records requested by a member of the public (yes, under the law, most government records belong to us, the public). Agencies also frequently provide incomplete records or refuse to provide records for unjustified reasons.
Our “Listening to FOIL: Lessons from Six State Agencies” report includes numerous examples of dysfunction. For example, the heavily FOILed Metropolitan Transportation Authority had a backlog of 886 “pending” FOIL requests stuck for an average of 982 days.
Fixing the FOIL process requires enough funding to enable agencies to respond to a huge increase in requests and new laws to stop agencies — and judges more sympathetic to the government than the public — from exploiting loopholes. Thankfully, the Legislature has four bills that would do a lot to modernize FOIL. These bills are supported by 18 groups that represent a wide variety of interests, including anti-corruption, anti-surveillance, criminal justice reform, and the environment.
First among equals is S452 (Hoylman-Sigal) / A2321 (McDonald), which is modeled after a successful federal law and requires state agencies to publicly report basic information like how many FOIL requests they receive and how long it takes them to respond. Currently, N.Y. agencies do not publish this forcing New Yorkers to literally file FOILs to get information about FOILs (federal agencies, on the other hand, do publish this information). Currently, lawmakers and the public have a tough time figuring out what agencies are FOIL leaders and which are lagging.
S2520 (Skoufis) / A3425 (Raga), reduces the time agencies have to provide records in response to a FOIL to a maximum of 60 days and allows the public to appeal if they do not. Faster response times means more timely information in the hands of the public.
A950-A (Steck) / S1418-A (Liu) makes it easier to get reimbursed for legal fees after winning the release of public records, which is allowed thanks to a 2017 change championed by Reinvent Albany. However, the conditions for reimbursements are too narrow, hinging on an obscure provision in the law that says that requestors must “substantially” prevail in court. This bill will expand the criteria for receiving attorneys’ fees and make it easier for members of the public, particularly journalists, to get their attorneys’ fees reimbursed.
S5000 (Hoylman-Sigal) / A1410 (Rosenthal), which would lead to more transparency from corporations that do business with the state. Currently, if a business submits records to the state, they may request that those records be permanently exempt from FOIL to protect trade secrets. While businesses are certainly entitled to some degree of privacy, the permanent exemption makes it so that the public often cannot see how much the state is spending on services and determine whether the state is getting ripped off. This bill will make it so that agencies have to reapply every three years for the exemption, making state business dealings more transparent.
New Yorkers pay the highest combined state and local taxes in the nation, and this money funds a government that is supposed to represent our collective interests and maintain our “public” records to a government that is supposed to represent our interests. New York’s Freedom of Information Law says our government should assume the public has a right to public records. But for too long, New York has acted as if it is not beholden to its own funders — the public.
This year, our Senate and Assembly, representing us, have a chance to show America that whatever else is happening, New York is standing up for open government and the rule of law.
Speaker is the legislative director of Reinvent Albany.
