Bills would add teeth to FOIL
Gov. Andrew Cuomo has the chance to make it easier for citizens to gain access to public records by signing two bills that provide incentives for governments to comply with requests.
The state’s Freedom of Information Law and its Open Meetings Law are fairly comprehensive in what information they require government agencies to disclose to the public.
Where the laws tend to be lacking in many ways is in incentives for governments to follow them. People can request records or access to meetings, but if governments fail to comply, about the only recourse for citizens and the media is taking the government agency to court. That can cost a lot of money and take a lot of time, with no guarantee you’re going to be successful. Unless you’ve got deep pockets with which to challenge a tax-supported government in a lawsuit, that limited course of action tends to discourage citizen appeals and empowers governments to flout the law.
The two bills that have passed both houses of the state Legislature and which await the governor’s signature give some power back to the people by putting teeth into the state’s open government laws.
The first bill (A1437B/S533B) would award attorneys fees and court costs when a court finds that a citizen or media organization seeking records had “substantially prevailed” in its argument to obtain a record and that the government agency had “no reasonable basis for denying access.”
Governments generally know when they’re denying records for no good reason. If they want to keep them secret, they will try. But if they know they’re likely to lose a court case and end up paying costs (their own and the citizen’s), they might be less inclined to take it that far and decide it would be easier and cheaper to just turn over the records.
The second bill (A114/S1531) would speed up the release of documents when a court rules in favor of a citizen seeking records. Right now, governments can lose a case, but can continue to withhold records for up to nine months while they appeal the decision. In effect, they “functionally deny” the release of records by dragging out the appeal.
This bill would require them to appeal within 30 days and turn over the records within 60 days. If the agency continues to stall, the appeal will be dropped. Again, this law is rooted in a court action. But it provides governments with an incentive to release records in a timely fashion if they know their legal case is weak. And by reducing the court time, it reduces legal expenses for both sides.
These two bills don’t throw open the vault to public information. But by signing these two bills into law, the governor will be chipping away significantly at the walls of secrecy. We urge him to sign both.