We often rag on the state Legislature, the most highly paid lawmakers among the 50 states, who can also pocket unlimited outside income and face no term limits. But sometimes they get it right, as what happened with two bills improving the state Freedom of Information Law.
Thank you to state Senate Majority Leader Stewart-Cousins and the 62 other senators and to Assembly Speaker Carl Heastie and his 149 colleagues. Gov. Hochul should sign both measures into law as soon as possible.
One of the reforms is to correct a really, really bad case ruling by the Court of Appeals, the highest court in New York State, that we ran up against a few years ago.
In 2022, we were seeking the resignation letters of the two Manhattan prosecutors who quit when the criminal case against Donald Trump for cheating on the value of his properties was dropped. The case was continued as a civil matter by state Attorney General Tish James, resulting in a judgment of hundreds of million dollars that Trump had to pay.
The Manhattan district attorney’s office denied our request for the letters even, as we wrote in an editorial at the time: “suggesting redacting ‘protected personal information’ or ‘anything specifically subject to grand jury secrecy.’ “
As we explained in the editorial: “The DA denied our appeal, but did explain that the letters ‘cannot be redacted pursuant to FOIL, which permits redactions of records only under the personal privacy exemption,’ citing a number of court decisions.
“As confirmed by lawyers we trust, the Court of Appeals says, quite foolishly, that redacting to shield confidential information is only for personal data, like home addresses or bank account numbers or names of young kids. What that means is that grand jury mentions or other confidential material in an otherwise non-confidential record (like a resignation letter) can’t be redacted, deeming the entire document confidential and therefore exempt from Freedom of Information sunlight. That’s bad, bad policy that shields countless documents from scrutiny.”
Say there is a 300-page document that John Smith is seeking from a state or local government agency in New York. If there is a mention of something like grand jury material on page 200 and only page 200, the logical way to proceed would be to redact the grand jury info on page 200 and release the rest. But no, said the high court foolishly, the whole 300 pages must be withheld from disclosure.
That ridiculous ruling has now been overruled by the Legislature on a unanimous vote of the Assembly and only two negative votes in the Senate. So Mr. Smith would get the 300 pages, with just those secret portions of page 200 redacted. After Hochul signs this into law, we haven’t decided if we are going to seek the 2022 resignation letters or not from the Manhattan DA.
The other FOIL reform that passed (unanimously in both chambers) reduces the time that the public and the press have to wait to appeal FOIL delays and denials.
We have long thought that government has the wrong approach to FOIL, that unless something is barred by law from disclosure, it should automatically be published by the government. Until a mayor or governor sets that policy, we’ll still need the FOIL process.
