EDITORIAL: Amend exemption of Freedom of Information Law that hides malfeasance


There’s a provision in the state Freedom of Information Law that is used so much by government officials to hide illegal and inappropriate conduct that it has no business in a law with the words “freedom” and “information” in it.

It’s time state lawmakers stop allowing officials to hide behind this exemption and remove it or significantly change it to make more such information available.

The exemption relates to disclosure of records that “are compiled for law enforcement purposes and which, if disclosed, would interfere with law enforcement investigations or judicial proceedings; deprive a person of a right to a fair trial or impartial adjudication; identify a confidential source or disclose confidential information relating to a criminal investigation; or reveal criminal investigative techniques or procedures, except routine techniques and procedures.”

We’ve got no problem with the government withholding records related confidential sources or investigation techniques, and neither should anyone else.

But the language of the rest of the exemption is so sufficiently vague and broad that virtually any investigation into any government official can fall under it.

The exemption has been exploited for everything from withholding building inspection records to police disciplinary records.

Often the records withheld were already in the public domain and removed.

Most recently, the governor’s office is using the law-enforcement exemption to withhold records detailing overtime payments to junior staff members, in response to a Times Union FOIL request related to the governor’s book on the pandemic.

There’s no reason the public should not be able to see where their tax dollars are going when it comes to payroll information for government employees.

But because there are several investigations into the governor’s activities, Cuomo’s office feels even routine payroll records should be withheld.

They don’t say in their denial, according to the Times Union, which investigations the release of the documents would impede or how exactly they would deprive the governor of a fair trial.

The governor’s office has used this ploy before when it refused to release time sheets for other aides related to the book.

The exemption needs to be clarified and narrowed so that the people can judge for themselves the impact of documents on an investigation and also to limit its use to the agency conducting the investigation.

The state also needs to change the wording to clarify the difference between records that are collected for an investigation and those compiled independently.

And it should require officials to state exactly how the release would undermine an investigation, and it should more precisely define the conditions under which the exemption would apply.

Government officials shouldn’t be able to use the state’s own transparency laws to hide their misdeeds. But routinely, the language of the law is exploited for just that purpose.

It needs to be changed.

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