Opening a Wider Window on Government

By Cameron Macdonald

Executive director, Government Justice Center

Accountable government starts with transparency. Voters cannot evaluate their government without knowing what it is doing, and why.

To prevent elected officials and government agencies from avoiding accountability, New York’s transparency laws should be reformed to increase transparency—using the latest technological tools—and to eliminate practices that discourage public participation in government.

New York took its first significant step towards greater transparency in 1974 with the enactment of its Freedom of Information Law (FOIL). In the law’s opening paragraph, the Legislature declared:

“[A] free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government…”

“The people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality. The legislature therefore declares that government is the public’s business and that the public, individually and collectively and represented by a free press, should have unimpaired access to the records of government …”¹

Two years after becoming one of the first states to pass a government transparency law in the wake of the Watergate scandal, New York was among the last two states to pass an Open Meetings Law.²

Here again, the Legislature began with the best of intentions, declaring it “essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.”³

The FOIL statute and the Open Meetings Law taken together marked a strong presumption of public access to government records and decision-making. But both laws required amendments over time as agencies resisted disclosure and technology changed.

THE STATUS QUO

The 1974 version of FOIL focused on categories of records state and local government agencies needed to make available for public inspection and copying. Those categories included final opinions in adjudicatory matters, policy statements or interpretations and documents and data underlying them, minutes of meetings and public hearings, internal and external audits and statistical or factual tabulations, staff manuals and instructions to staff that affect the public, and police blotters. The law also required each agency to create an itemized record containing the name, address, title, and salary of every agency officer and employee, with certain access restrictions to law enforcement records.⁴

Repeal and replacement

By 1977, the Legislature had recognized the limits of transparency under the existing law and repealed and rewritten the original FOIL to presume that all records would be publicly available unless one of enumerated exceptions applied.⁵ The core exceptions from disclosure remain in place today, covering records that:

are exempt from disclosure under state or federal law;
if disclosed would be an unwarranted invasion of personal privacy;
if disclosed would impair present or imminent contract awards or collective bargaining negotiations;
are trade secrets or sensitive commercial information submitted to an agency;
are compiled for law enforcement purposes;
if disclosed could endanger the life or safety of any person;
are inter-agency or intra-agency materials which are not statistical nor factual data, instructions to staff that affect the public, final agency policy or determinations, or external audits, or
include examination questions or answers for an exam not yet administered and final.^{⁶Public Officers Law, § 87(2).}

Unfortunately, agencies aiming to avoid disclosure of certain information have taken aggressive approaches to claiming records fall under one of these exceptions, causing records to be withheld entirely or redacted to a point of being useless to the public.⁷

Notable amendments since 1977

In making all records available to the public, the 1977 update to FOIL added timeframes for disclosure that assumed agencies would disclose records within five business days. If unable, agencies were to provide an approximate date for a response.⁸

The Legislature amended FOIL in 2005 to codify case law that had established the approximate date for responding to a request must “be reasonable under the circumstances of the request.” Further, any agency requiring over 20 business days to respond after acknowledging a request needed to explain the reason for delay and provide a date certain for the response.⁹

The 2005 FOIL changes also codified the concept of constructive denial, which permits a requester to take an administrative appeal and resort to the courts if an agency does not meet FOIL’s deadlines.¹⁰

Courts have always been the ultimate arbiter of FOIL disputes. The Legislature added a provision in 1982 to allow them to award prevailing requesters attorney’s fees and other litigation costs “to create a clear deterrent to un-reasonable delays and denials of access [and] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL.”¹¹ The Legislature noted that “[c]ertain agencies have adopted a ‘sue us’ attitude in relation to providing access to public records.”¹²

Amendments to FOIL’s attorney’s fees provisions in 2006 and 2017 were designed to increase the likelihood of attorney’s fee awards.¹³ But resorting to the courts is a significant financial commitment, even for a self-represented individual, at a risk of a court in its discretion not awarding fees and costs. Thus, agencies can take a “sue us” attitude with little downside risk.

Changing technology

FOIL contains a broad definition of “record” to include “any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever.” The information’s content or purpose is irrelevant to being within FOIL’s scope.¹⁴ But an agency need not create records from information it possesses, including from electronically stored data.

In 2008, the Legislature codified case law and updated FOIL’s provisions to reflect the new electronic age to counter government arguments that retrieving data was creating a record. The amendments clarified that any programming required to retrieve electronic records is not the creation of a record.

MOVING FORWARD

Records received too late for them to be useful or so heavily redacted as to not convey meaningful information frustrate government accountability. To live up to the promise of making government “responsive and responsible to the public,” New York’s FOIL provisions should be updated and reformed to:

Mandate more proactive disclosure. The original 1974 FOIL contained a version of proactive disclosure requiring every state and local agency to have six categories of records ready for inspection and copying by the public. It also required agencies to create a record of agency employee names, titles, and salaries for the public to access. The Legislature should go back to the beginning and codify more proactive disclosure in FOIL, especially given today’s technology. Lawmakers took a related step in 2021 with passage of the Metropolitan Transportation Authority Open Data Act,^{¹⁵L. 2021, ch. 482, § 3.} which gave the MTA 180 days to create a catalogue of its “publishable data” and schedules for publishing such data. Since the law went into effect, MTA has added 50 new databases to the state’s open data website.^{¹⁶ “Open NY,” State of New York, accessed October 10, 2022, https://data.ny.gov/browse?Dataset-Information_Agency=Metropolitan%2BTransportation%2BAuthority&category=Transportation&utf8=%E2%9C%93&sortBy=ne} The MTA law is a “win-win” approach, since posting documents and data on agency websites obviates the need for the public to request them via FOIL. It also reduces the volume of FOIL requests an agency must handle.^{¹⁷Another example of proactive disclosure can be found on the website of Florida governor’s office (https://www.flgov.com/open_government/) which provides links to its responses open records requests, organized by month. What the website may lack in user friendliness it makes up in the time saved on record searchers, which can be completed in minutes or hours versus days or weeks under a FOIL request.} Taking advantage of free, widely available Internet programs or even social media services, a government agency or local government of any size can pre-emptively disclose a wide variety of records. For larger amounts of data, terabytes of cloud storage can be obtained for less than $100 a year.^{¹⁸Steven J. Vaughan-Nichols, “Best Cloud Storage 2021: Expert Services and Pricing,” ZDNet, July 7, 2022, accessed October 10, 2022, https://www.zdnet.com/article/best-cloud-storage.} And some agencies can add proactive disclosure by enhancing their existing systems; for example, the state comptroller maintains a searchable database of state contracts at Open Book New York^{¹⁹https://www.osc.state.ny.us/open-book-new-york} that can be improved with links to electronic copies of the contracts themselves.

Every level of New York government should index and post its contracts and bidding for those contracts online. Agencies should also disclose payrolls and budgets on their websites. Florida posts its state government payroll online and so should New York.²⁰ Every local government should have prominent links on their homepages to updated payroll information and current budgets. Agencies and municipalities should further post and regularly update their organizational charts.²¹

Set firmer deadlines for FOIL responses. The requirement that agencies at first respond to FOIL requests within five business days hasn’t had the intended effect. On-time acknowledgments often precede months of delay. FOIL should provide more time for an initial response—for example, two weeks—but make it tougher for agencies to impose delays beyond that initial period. Within two weeks, agencies should be requirement to either disclose the records, or certify that none exist, or highlight shortcomings in the request. Additional time periods should be limited to 20 business days from receipt of the request, with any additional delay requiring a written explanation and a firm date certain for a response—not (to cite a frequent current stalling tactic) a time in the future for an update on the status of the request.

Imposing firm deadlines on agencies draws obvious lines for requesters to seek remedies in court and judges to award attorney’s fees when lawsuits become necessary. Accountability can be enhanced by mandating that agencies track FOIL requests and responses in real time in an online database.

Improve the dispute resolution process. In 1982, FOIL was amended to allow judges to award attorney’s fees and litigation costs to requestors who take agencies to court and win if unreasonably denied access to records.^{²²L. 1982, ch. 73.} But getting to court currently begins with a flawed process because the initial, administrative adjudication is done by the agency denying the request. To avoid this, appeals should be routed directly to a third-party agency tasked with promoting government transparency. Such an agency can mediate disputes, provide consistent determinations, and flag issues that may require FOIL amendments.^{²³See, e.g., “About the Office of Open Records,” Commonwealth of Pennsylvania, accessed October 10, 2022, https://www.openrecords.pa.gov/AboutOOR.cfm.}
Fix bad precedents. The Legislature recognized transparency can’t be absolute when it repealed and replaced FOIL in 1977. Agencies may need to assert legitimate exceptions at times. Over time, however, FOIL exceptions have been distorted into loopholes used to keep valuable information from the public. Vendors contracting to provide goods and services to the state, for example, have critical contract terms withheld from the public as confidential commercial information. Agencies also abuse FOIL’s “deliberative” intra- or inter-agency materials exception. Intended to encourage the free flow of ideas in decision-making, it’s now used to withhold entire drafts of government documents, including reports and data analyses. FOIL should limit the exception to objectively candid opinions necessary to the free flow of ideas and should not include records like consultant reports that underpin decision-making. The Legislature needs to make clear within FOIL to agencies and the courts that exceptions to disclosure should be rare through revisions to the exceptions that make them harder to apply.

Increase access to public meetings. The Open Meetings Law only requires state agencies to broadcast or transmit public meetings “to the extent practicable and within available funds.” An executive order issued in the early stages of the Covid-19 pandemic required all public bodies to broadcast or transmit their meetings.^{²⁴Executive Order No. 202.1: Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency, Governor Andrew M. Cuomo, March 12, 2020, accessed October 10, 2022, https://govt.westlaw.com/nycrr/Document/I6f220a46e23411ea942fb02e02de8851?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)} The result: public bodies at all levels, not just the state, demonstrated that available technology makes broadcasting or transmitting public meetings possible for every type of agency. Broadcasting or transmitting public meetings should be mandatory for all bodies under the Open Meetings Law’s jurisdiction.

In a provision set to expire on July 1, 2024, the Legislature has permitted public bodies to use videoconferencing as allowed by a local law or resolution, provided the public body has a quorum present in a physical location or locations where the public can attend. Members of public bodies may attend via videoconference in extraordinary circumstances,²⁵ and the public must be able to view a videoconference meeting by video. Video conferencing must allow for the same public participation through public comment or testimony as in person.²⁶ The Committee on Open Government is supposed to report on the videoconferencing provisions of the law and make further recommendations by January 1, 2024.²⁷ Ideally before but no later than 2024, the Legislature should mandate videoconferencing for public meetings at all levels of government to encourage greater public participation.

Define “meetings” in 21st century terms. The Open Meetings Law defines a meeting as “the official convening of a public body for the purpose of conducting public business.”^{²⁸Public Officers Law § 102.} That made sense when “meeting” meant an in-person gathering. But in 2022, group emails, texts, and messaging platforms are among the places where deliberations can happen hidden from the public. Consistent with its stated purpose of making sure citizens can “attend and listen to the deliberations and decisions that go into the making of public policy,”^{²⁹Public Officers Law § 100.} the Open Meetings Law needs to be revised to adapt to such new technologies, and to cover all the ways in which “meetings” can now occur.

Cameron Macdonald is executive director of the Government Justice Center and an adjunct fellow with the Empire Center.