A coalition of 20 state and national government watchdogs is calling on Gov. Andrew Cuomo to sign legislation reforming the state’s Freedom of Information Law.
The bill, A.2750-a/S.2392-a, would award attorney’s fees to plaintiffs in a FOIL case where a judge determines an agency failed to properly disclose request documents. As the law stands, the awarding of legal fees is done at the judge’s discretion and includes some blurry language.
The bill would need to be signed by the end of the year to become law.
According to the coalition’s press release, penned by reform group Reinvent Albany, the state’s current FOIL system has a flaw that allows for abuse by state agencies. When a person files a FOIL request, the state agency can either accept the FOIL request and disclose the records — at a fee of up to 25 cents per page to the requester — or deny the request while providing a justification for withholding them.
Once this process has been completed, the requester has the option to take the state to court if they believe that the state was not justified in withholding the records, as the language of the law states, if the plaintiff, or the person being denied a FOIL request, “substantially prevails” in proving the state lacked a justification to withhold the documents, the judge may rule in their favor.
At this point, as the law stands, the plaintiff must seek their legal fees from the state via the court system and must prove to a judge that they “substantially prevailed” in getting the records they sought and that the state had “no reasonable basis” for withholding the requested documents. Only then may the judge award legal fees to the plaintiff, again, at their discretion.
This judicial discretion is where things start getting sticky.
Advocates for the bill, sponsored by Assemblywoman Amy Paulin, D-Scarsdale, and Senator Patrick Gallivan, R-Elma, argue that the language of the current law places an unfair burden on the plaintiff. It is left to the judge to determine, even if the plaintiff does prevail, how substantially they did so.
Equally problematic is the standard of “no reasonable basis” for withholding the records. This phrasing leaves judges with a certain amount of latitude in determining if the state was justified in attempting to withhold documents. Meaning that even if it was found by a judge that some of the documents requested were in fact unreasonably withheld, the plaintiff may not be able to recover their legal fees.
The gray areas created by the imprecise language of the current law allows for the state to withhold documents that the requester may actually be entitled to, doing so knowing that because there is uncertainty on the part of a requester that they will be able to recover their legal fees, they are less likely to pursue a lawsuit. These legal fees can be substantial while litigating with an entity as substantial as the state of New York. A problem, that simply in theory, could have a chilling effect on a citizens incentive to seek documents from the state.
A bill similar to these that sought to address this issue moved through the houses in 2015 before landing on Gov. Cuomo’s desk. He vetoed that version largely because of time constraints placed on the state in dealing with appeals to FOIL denials and the asymmetrical manner in which it allows for Plaintiffs to be awarded legal fees and not “uniformly against both parties,” according to the statement of veto from 2015.
The memo of support, undersigned by state advocacy groups such as NYCLU, Citizens Union and Common Cause NY, also gathered the support of national groups like Represent.us and National Freedom of Information Coalition.
“New York’s Freedom of Information Law is the single most important transparency tool the public has,” reads the coalition’s statement in support of the bill. “Unfortunately, it is common for government agencies in New York to deny FOIL requests. Agencies are able to violate the Freedom of Information Law because they know it is prohibitively expensive for the public to go to court to order the release of public records.”
FOIL laws were introduced first under President Lyndon B. Johnson in an effort to increase transparency and accountability in government. The laws were updated to be more relevant in the digital world by President Bill Clinton in 1996.
To say closing this loophole is a popular bi-partisan decision is an understatement. The bills sailed through both houses taking with it just 1 vote against in the process — passing the Assembly 135-1 and the Senate 62-0.
“The legislation — one of more than 500 that passed both houses in the final weeks of the session — remains under review by Counsel’s Office,” said Rich Azzopardi, deputy communications director for Gov. Cuomo, by email on Thursday afternoon.
The group is asking for the governor to call on the bill and sign it into law.
The below groups are signatories on the statement:
Brennan Center at NYU Law
Common Cause NY
First Amendment Coalition
Just Leadership USA
League of Women Voters of NYS
New York Press Club
Tri-State Transportation Campaign
National Freedom of Information Coalition
New York Civil Liberties Union
Pace Environmental Litigation Clinic
Tully Center for Free Speech