Toughen FOIL

Cuomo should sign bill that would close loop­hole in Free­dom of In­for­ma­tion Law


Await­ing the sig­na­ture of Gov. An­drew M. Cuomo is an im­por­tant bill whose in­flu­ence will ben­e­fit ev­ery New Yorker, es­pe­cially those who run into a brick wall while try­ing to pry pub­lic in­for­ma­tion out of gov­ern­ment agencies. The sooner Cuomo signs it, the sooner he can boast about mak­ing gov­ern­ment work bet­ter for some 20 mil­lion res­i­dents.

The bill closes a gap­ing hole in the state’s Free­dom of In­for­ma­tion Law, a hole so large that pub­lic of­fi­cials bent on il­le­gal se­crecy can pur­sue that goal know­ing they will face no con­se­quences. This law adds some pain to un­war­ranted de­nials. It re­quires courts to award at­tor­neys’ fees to plain­tiffs when they find a gov­ern­ment agency had no rea­son­able cause to deny the re­quest.

Those fees can eas­ily mount into the thou­sands of dol­lars, cre­at­ing an in­sur­mount­able ob­sta­cle for many peo­ple seek­ing pub­lic in­for­ma­tion. And even those who can af­ford those ex­penses, in­clud­ing the news me­dia, still have to think twice be­fore ap­peal­ing a cav­a­lier re­fusal.

Such de­nials amount to an abuse of a law that was meant to en­sure pub­lic ac­cess to pub­lic in­for­ma­tion. In­stead, many gov­ern­ment agencies have rou­tinely re­quired FOIL re­quests even for rou­tine in­for­ma­tion. Some sim­ply refuse to com­ply, and for any num­ber of rea­sons, in­clud­ing em­bar­rass­ment, ar­ro­gance and fear.

Rein­vent Al­bany, an 8-year-old non­profit or­ga­ni­za­tion whose mis­sion in­cludes pro­mot­ing open gov­ern­ment, this week re­leased an un­set­tling anal­y­sis re­gard­ing abuse of the Free­dom of In­for­ma­tion Law. It found that in 22.7 per­cent of FOIL law­suits, plain­tiffs were ini­tially or ul­ti­mately de­nied at­tor­neys’ fees, even when they won ac­cess to records and the agency had no rea­son­able cause for deny­ing it.

That so many are re­fused the re­im­burse­ment they are eth­i­cally due peels the mask off the face of of­fi­cial ob­struc­tion and hints at the greater num­ber of peo­ple who must be dis­suaded from ap­peal­ing a de­nial in the first place. This law will help to fix that.

The fix is es­sen­tial. Democ­racy can­not work un­less vot­ers have ac­cess to in­for­ma­tion gath­ered in their name and at their ex­pense. There are times when in­for­ma­tion may ap­pro­pri­ately be kept pri­vate – dur­ing the course of a crim­i­nal in­ves­ti­ga­tion, for ex­am­ple – but those aren’t the cases that are usu­ally the tar­get of FOIL ap­pli­ca­tions.

The Buffalo News, for ex­am­ple, has re­peat­edly sought ac­cess to the video that doc­u­ments the bru­tal beat­ing of a hand­cuffed in­mate by a Buffalo jailer. The re­quest was de­nied by the city, then by a judge, cit­ing the pend­ing crim­i­nal trial. It was an un­rea­son­able de­ci­sion, given the rou­tine abil­ity of courts to seat im­par­tial ju­ries, even in high-pro­file tri­als.

But the ob­struc­tion con­tin­ues, even af­ter Matthew Jaskula’s guilty plea, on the pre­tense that re­leas­ing the video might in­ap­pro­pri­ately in­flu­ence a civil law­suit. The judge and the city moved the goal­posts.

The beat­ing was ad­min­is­tered by a pub­lic em­ployee in a pub­licly sup­ported lo­ca­tion. Any civil li­a­bil­ity will be paid by the pub­lic. Yet the city re­fuses to re­lease the tape and the judge has gone along with the cha­rade. It’s an abuse of dis­cre­tion.

The Buffalo News con­tin­ues to seek re­lease of the tape, but what about in­di­vid­u­als, who own the same right to ac­cess as the news me­dia? The costs would be over­whelm­ing for most, es­pe­cially given the chance that they would be stiffed for at­tor­neys’ fees.

The leg­is­la­tion is not a cure-all. Plain­tiffs will still have to front the money for an ap­peal and, if they win, it won’t be the re­cal­ci­trant of­fi­cial on the hook for lawyers’ fees. Tax­pay­ers will foot that bill. Still, elected of­fi­cials will be blamed for in­cur­ring those costs and so might be in­duced to en­sure that FOIL re­quests are han­dled more hon­estly.

Nev­er­the­less, this is a start, and it’s a good one. The law passed unan­i­mously in the Se­nate – where, we are pleased to note, it was spon­sored by Sen. Patrick Gal­li­van, R-Elma – and with only one no vote in the Assem­bly. It’s now up to Cuomo. to write es­says. I soon found that I was be­ing in­spired to write not only about my life as a wife, mother and wi­dow, but I also be­gan to re­flect more on my child­hood in Buffalo.

Such groups pro­vide writ­ers with an au­di­ence to present their ideas to, and they also give us an op­por­tu­nity to con­sider dif­fer­ent tech­niques and gen­res. Our vi­sion is ex­panded. I have been in­tro­duced to fic­tional me­dieval king­doms, the life of sideshow cir­cus folk, and the mis­treat­ment of the men­tally ill in the early 1900s. I have to ad­mit, though, that one down­side is the fact that some writ­ers start us on these jour­neys, but stop com­ing to class be­fore fin­ish­ing their tales – our imag­i­na­tions have to de­cide end­ings for these sto­ries.

I have been at­tend­ing ses­sions for seven years now, and de­spite the fact that my spe­cialty is pri­mar­ily mem­oirs, I have branched out into fic­tion and po­etry. On the fic­tional side, I have ex­plored the life of an artist’s man­nequin, and writ­ten a tale of a lady whose pop­u­lar­ity

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