We’re always telling people they should fight for their “right to know,” that they should hold public officials accountable by demanding transparency and accountability.
We do it for a good reason.
Governments that operate in secret tend to act in the best interests of themselves and those close to them.
When citizens are informed and active, they help ensure a better government for themselves and their communities.
But fighting for transparency and openness isn’t always easy, and the actions one must take are not always obvious.
So here are a few things you should know as you join the battle for transparency.
For some who are actively involved, much of this will be a mini refresher course. But for many others, some of whom may find themselves interacting with their government for the first time because of an incident that touches them personally, this should provide some basics to help you with your efforts.
NEW YORK LAWS
First, each state has its own laws and regulations regarding access to information, with some states being more open than others.
For those of us who’ve sought to obtain records from New York governments over the years, we’d probably grade the state anywhere from a C-minus to a D in terms of openness.
The state’s laws for transparency need some significant improvement, and there is little incentive for governments to comply with them because the laws lack significant enforcement measures.
If you’re denied a record or access to a meeting, and the government body won’t budge, you generally have to take the matter to court. Given that governments often have more resources than individual citizens, the governments are often able to win cases by attrition. Going to court is expensive and time consuming, and many people give up or no longer need the records by the time the case is concluded.
The scale tilted a little more toward citizens when then-Gov. Andrew Cuomo in 2017 signed a law that requires courts to assess reasonable legal costs in Freedom of Information Law cases in which the citizen “substantially prevailed” and when the court found there was no reasonable basis for denying access to a record. Even with that, government bodies still regularly deny or delay the release of records without consequences. So be prepared to battle in some cases.
State lawmakers need to add more teeth to the laws to bring up the state’s grade.
All that being said, New York’s Open Meetings Law and Freedom of Information Law (known as FOIL) are pretty simple and clear.
You can read the text of the laws and decent summaries of each on the state Committee on Open Government website, opengovernment.ny.gov/.
Do yourself a favor and go to the website, and under where it says, “Publications,” print out the pamphlet called, “Your Right to Know.”
Most journalists carry a version of this in their pockets any time they attend a meeting (or should). It’s a great reference provided by the state on the Open Meetings and Freedom of Information laws.
It covers the process for seeking information, provides a list of all the rules and exemptions, defines what constitutes public records and public meetings, and includes a sample template for filing a request for records and appeals that citizens can simply copy into an email and send to a government official.
The state transparency laws operate under the presumption of openness, meaning governments must have a good reason for denying access to records or meetings.
Government boards can hold meetings in secret, called “executive sessions,” only as part of a public meeting. And they must have a specific reason for closing the meeting and announce it in public.
Reasons for closing a meeting include discussing legal strategy for proposed, pending or current litigation; anything that would jeopardize a law enforcement investigation; and details about the medical, financial or employment history of a person or matters related to disciplining, firing or hiring individuals.
The whole list is in the “Your Right to Know” publication.
If a board tries to close a meeting citing “personnel,” don’t accept it. That’s not a legitimate reason. They need to be more specific. If they’re discussing the salary for a position, but not for a specific individual, they can’t close the meeting. If they say they want to discuss a possible lawsuit, don’t accept it. The litigation must be pending, proposed or current. If you wonder about the reason, you have a right to stand up and challenge the decision and demand a specific answer.
Here are some other things to remember about meetings:
- Boards are required to post agendas and documents being discussed at meetings online 24 hours prior to a meeting.
- A board must allow you to observe meetings and make sure you can hear what’s going on, but they don’t have to allow you to speak at them (unless it’s a public hearing).
- If the room is too small for the crowd, the meeting must be moved to a bigger space.
- Many government boards these days livestream their meetings to allow people to watch from home, and many post videos of past meetings for residents who miss them live. If you can’t attend, you can still “attend” virtually and often comment.
OK, now say you want a record. You’ll likely be asked to file a FOIL, or Freedom of Information Law request.
Filing a FOIL request is pretty simple. Many government boards now have FOIL forms posted on their websites. Just fill them out and hit ‘send.’ Or use the template provided by the state and mail or email a request to the records clerk. (Check the government’s website.)
Be very specific about the records you are seeking. Include a range of dates and name specific portions of documents you want. If you’re too vague, your request will likely be denied and you’ll have to wait longer for the record. You also don’t want the board to bombard you with information you’re not seeking. Government bodies can legally charge residents for the time and effort it takes for them to hunt down records, so ask for a cost estimate in advance to avoid an expensive surprise. (Usually they won’t charge for a few documents, but requests for larger documents can get expensive and take a lot of time to fill.)
Boards have five business days to respond to your FOIL. That doesn’t necessarily mean honor it, just tell you what’s next. They’re required to provide you with a general timetable for when you might get the record.
But don’t be surprised if they extend that if they don’t want to release the record.
If they deny your request, consider refining or narrowing your request and resubmitting it. If you still believe you’re entitled to the record, you can submit an appeal letter demanding a specific reason for denial. FOILs and appeals are free to file and usually don’t require a lawyer.
FEDERAL RECORDS LAW
Everything we’ve talked about here so far is about state and local governments. The federal government has its own law, the Freedom of Information Act (FOIA), which covers access to federal records.
For information about FOIA and how to use that law to fight for your right to know, visit www.foia.gov/.
OTHER WAYS TO FIGHT
Other than attending meetings and requesting documents, you can contact your local and state officials and urge them to support new, stronger transparency laws.
In an editorial on Wednesday, we listed some of the open government issues pending in the state Legislature this year. Google more information about these proposals and then email or call your representative in the Assembly and Senate and tell them you want them to support these bills.
Follow and support groups online that advocate for open government issues such as the New York News Publishers Association, the New York Coalition for Open Government, Reinvent Albany, the New York Public Interest Research Group (NYPIRG), the Empire Center, the League of Women Voters of New York State, Common Cause New York, Citizens Union and others.
Consider joining the New York Coalition for Open Government. It’s a nonprofit, nonpartisan grassroots group made up of ordinary citizens across the state. They advocate for open government issues, hold regular meetings via Zoom and regularly survey government bodies around the state for compliance with the laws. Membership is $20 a year. It’s worth your time to check them out. Visit www.nyopengov.org/.
The Gazette is also a strong advocate for open government, and we’ll help you if you have an issue with a local or state government matter. Email Editorial Page Editor Mark Mahoney whenever you have questions or concerns about FOIL or the Open Meetings Law. He’ll be happy to assist you when he can. He can be reached at [email protected].
We can have effective, honest and open government, but it won’t happen if we all sit idly by and hope for it. It requires active participation from citizens.
We urge you to join the fight.