Among the hundreds of bills expected to come before Gov. Andrew Cuomo are two passed by the Legislature earlier this year that would greatly expand the public’s right to know.
The first bill (A3939/S5496) bill addresses a concern we’ve expressed many times about the withholding of public documents from the citizens when the documents might interfere with a judicial proceeding or when the documents are being used as part of a law enforcement investigation or criminal proceeding.
Often, district attorneys and police withhold public documents, or even remove them from the public access, simply because the records are part of an investigation -- even if the records were in the public domain, were collected for an unrelated reason, and were accessible to the public prior to the investigation.
Public records such as tax map records and building inspections have been taken out of the public’s view for months for this reason.
Often, release of the records in question would have no effect on the investigation, would not reveal investigative techniques or have any impact on the outcome of a case.
They’re simply blocked from disclosure under an overly broad and unnecessary exemption.
Under this important bill, the state Freedom of Information Law (FOIL) would be amended to state that records withheld under the judicial proceedings exemption could be released by the judge who is presiding over that particular case.
That at least gives the media and the public an opportunity to argue why the records should remain open.
The bill also would amend the law enforcement exception to FOIL to make it clear that records couldn’t be withheld solely because they relate in some manner to the investigation or criminal proceeding. Portions withheld that would identify the victim of a sexual offense would be exempt from disclosure, which is a reasonable compromise.
Another bill (A414/S4685A) involves cases in which a business seeks to block the government from releasing records to the public on the argument that the release could cause “substantial injury to the competitive position of a commercial enterprise.”
This is a twist on usual FOIL cases, since most times, it’s the government trying to stop records from being released.
Often, companies will go to court to prevent government from releasing certain public documents as a delaying tactic while they work out a business deal that might be antithetic to the public, such as construction of a new factory or housing development.
Such a request can tie up a record in court for months, preventing the citizens from seeing the record until it’s no longer relevant to them.
This bill would require that such requests by companies be given preference by the courts and be heard in an expedited manner so as to limit the time the records are kept secret.
Both bills would significantly expand the public’s right to know, and the governor should sign them when they come to his office for his signature.