Reform promise unmet
Reform inevitably evolves into routine, revealing the need for further reform. Progress dies when we become complacent that things are as good as they’re going to get.
That’s the case with New York state’s open government laws, which were justifiably hailed when they emerged in the mid-1970s as harbingers of a more open, accountable government. Here’s today ’s reality: There’s still too much secrecy in state and local governments, leaving the citizens who are supposed to be in charge too often in the dark.
Unlike other states, New York doesn’t have an open government watchdog. The Committee on Open Government, a tiny office reporting to New York’s secretary of state, has no enforcement power; it operates mainly as an expert information source, issuing advisory opinions when it’s consulted on the Freedom of Information Law and the Open Meetings Law. Its annual reports to the Legislature note ways the laws can be clarified or strengthened, but it hasn’t risen to the challenge of calling out those who flout the laws and labeling their penchant for secrecy for what it is: a threat to democracy.
Legislators and Gov. Andrew Cuomo need to hear that a strong dose of open government reform is overdue. We shouldn’t abide the status quo of local and state agencies more often than not failing to live up to the promise of open government laws.
Typically, agencies take FOIL requests — from private citizens, journalists, neighborhood groups and businesses — and delay responding so long as to create a so-called “constructive denial” of the request. It’s not uncommon to wait a year or two for an agency to fulfill a FOIL request, as agencies string along those seeking information with one excuse after another. Often, the documents eventually provided don’t match what was requested, or are incomplete.
The Committee on Open Government, which is scheduled to finalize its annual report to the Legislature this week, would serve the state well by stepping up its monitoring of state and local compliance with the laws, to make it clear that secrecy will be noticed and revealed.
Beyond that, New York should be embarrassed to be known as a state that doesn’t take open government more seriously. There are places where it’s done better. In New Jersey, for example, agencies have only seven days to respond to a records request. If citizens have to go to court to get a noncompliant agency to release documents, the government must pay the citizens’ legal costs. New York requires such fee-shifting only in narrow circumstances. New Jersey also encourages compliance by fining officials for “knowing and willful” violations of open government laws.
New York legislators are typically reluctant to embrace open government law reform; notably, they ’ve held themselves exempt from the laws, and inexplicably made some key agencies exempt, including the Joint Commission on Public Ethics. But the effort to make government more accountable shouldn’t be seen as a promise fulfilled by reforms of decades ago. It’s an urgent task for today.