The state’s transparency laws are supposed to operate based on the presumption of openness.
But former Gov. Andrew Cuomo’s administration approached citizen access to government from the exact opposite angle – information belonged to the government unless the government deemed it worthy to share with the people.
If the new administration of new Gov. Kathy Hochul is to keep its pledge to make government more open, then one of the policies it needs to reverse from the Cuomo years is one that requires the governor’s office to sign off on sensitive public records before they’re released by state agencies under the Freedom of Information Law.
According to an internal state Department of State memo from 2018 obtained by the Empire Center, the Cuomo administration placed conditions on the release of certain documents, depending on who was requesting the records and the purpose and potential use of the documents.
According the memo, the governor’s office would have to sign off on the release of documents seemed “sensitive” based on a number of criteria — including whether the request was made by a media outlet (The media shouldn’t be treated any better or worse than any other citizen.), whether it was related to a political matter (In Albany, what isn’t?), whether it was connected to a potential legal action against that department (Virtually any document involving government can inspire legal action.) and whether the information is “non-routine” (What factors determine whether information is “routine” or not?).
The memo also established timelines for handling sensitive FOIL requests, according to the Empire Center, that go beyond the standard established in the law.
The beauty of FOIL is its simplicity and brevity — if a document doesn’t fall under one of a handful of very specific exemptions, the law assumes it should be released.
There’s no special provision in FOIL for the governor’s office to establish a separate set of criteria for release of information based on a separate set of standards not approved by the Legislature.
What this memo means is that the governor’s office has been withholding or delaying the release of information based on whether that information might be embarrassing or cause problems for officials.
Potential for embarrassment is not a legal reason for withholding documents.
Gov. Hochul has pledged to be more transparent. Let’s see her put her money where her mouth is.
She needs to revoke this memo and require all government departments to follow the Freedom of Information Law as it’s written and ensure that requests for information are addressed consistently and in keeping with the letter and spirit of the law as it exists.
Anything short of that will show how the new governor really feels about transparency.