Guest Column: FOIL: Giving sunshine back to the people

SUNSHINE WEEK: Ordinary citizens can play a big role in obtaining public records from reluctant governments

Categories: Editorial, Opinion

This is what you need to know about Helen Bayly.

She’s in her 80s, lives in Troy and during the summer of 2004, she set out to find the truth in a windowless government building, examining documents that were rightfully hers to inspect.

Bayly wanted to know why her beloved Saratoga Performing Arts Center, a nonprofit operating on public land, had gone astray after decades of success. 

If these private-public relationships sound familiar it’s because they are — they’ve just become more complex.

You may hear more about how these arrangements work during 2018, potentially a banner year for New York corruption trials. 

Then, you may also hear how the Freedom of Information Law (FOIL) was skillfully used to expose the abuse of power.

As we begin Sunshine Week, the annual initiative to trumpet the virtues of open government, it’s important to note Bayly’s story, which I featured in my new book, “FOIL: The Law and the Future of Public Information in New York.”

She wanted bylaws, receipts and contracts. She’s not the media. She’s not an attorney. She’s not part of a PAC.

Bayly is a New York State resident, and the original FOIL framers wrote the law for people like her. Anyone can exercise FOIL.

If it’s a public record and doesn’t fall under one of the law’s exemptions, it should be yours. 

As we dig deeper into the 21st Century, the public-record definition has changed dramatically. In the shadow of Watergate, records were documents.

Now, they’re also emails, data and video. As the volume of public information increases through various means, there’s also a seismic shift in the suppression of information.

Some local and state agencies, as documented in dozens of media accounts, continue to test the law’s elasticity as many incorrectly interpret exemptions. Some, courts found, do this deliberately.

Still, even as some public officials and agencies use FOIL as a shield, others are recognizing the value and potential of public information. 

Footage captured by body-worn cameras are public records, and a number of law enforcement groups are embracing its dual-purpose — it helps investigations, and in some cases, eases community tension.

Advocacy groups use data unlocked by FOIL to shed light on much-too-favorable business contracts and exploding pensions. Municipalities are using data to solve problems. 

There are more than 25,000 stories like this, told through advisory opinions penned by Robert Freeman and the Committee on Open Government, which helps all New Yorkers navigate the intricacies of the law.

There are even more stories, captured by people who simply asked for the information, and the government gladly provided.

It’s a transitional time for FOIL, but there is some promise that the law tips back into the hands of New York residents.

In December, one of the more favorable transparency bills in more than a decade was signed by the governor. 

A FOIL dispute can become messy, lengthy and costly.

If a FOIL petitioner prevails in court, they will not only receive the information but legal fees.

This will still cost taxpayers in some way, but the two-tier bill also gives the petitioner an incentive to pursue legal action, whereas a denied appeal was often the last stop in pursuit of answers. 

This didn’t stop Helen Bayly. This shouldn’t stop you. 

Brett Orzechowski is an assistant professor of management and media at Utica College.

This column was originally written for The Observer-Dispatch in Utica-Rome.

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