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Albany Times-Union, March
13, 2005 Growing Secrecy Threatens
Public
Erin Duggan
Every day, New Yorkers try to get public information – tax records, minutes of government meetings, accident reports and any of thousands of other documents. Mundane or not, vast numbers of those records are available to the public under the state's Freedom of Information Law. But those seeking information complain government officials use FOIL to literally foil attempts to access it.
Reporters, government watchdog groups and even lawmakers say access to information has gotten worse under Gov. George Pataki and President Bush, and that government's frequent inclination toward secrecy was bolstered by the threat of terrorism. Government, some worry, is using loopholes in its own law to stymie requests for information, discouraging those who don't have the time, money and enthusiasm to bring their case to court. "I think people are beginning to realize the lack of government responsiveness and the denial of rightful information is becoming more of a daily occurrence," said state Sen. Carl Kruger, D-Brooklyn. FOIL and the state's 1976 Open Meetings Law are considered "Sunshine Laws," designed to shed light on formerly secretive aspects of government to guarantee that democracy is conducted openly. How well government is responding is being looked at across the country this week as news organizations and other groups mark Sunshine Week. State agencies get tens of thousands of Freedom of Information Law requests each year, from regular citizens, lawyers, reporters, businesses and anyone else who needs documents held by the state. Under the law, an agency or government body has five business days to respond to the request. There's no penalty for failure to respond. But the law says the response must either provide the information, deny the request or simply acknowledge the request and give an approximate date of when the request will be fulfilled or denied.
Too often, critics contend, officials use the last clause to indefinitely delay dealing with requests. "If you don't get a denial, you can't go to court to request that the documents are turned over," said Diane Kennedy, president of the New York Newspaper Publisher's Association. Kennedy and her colleagues were in the Capitol last week lobbying lawmakers to amend the law's timetable for responses. They found majority-party lawmakers in both houses -- Oneida Assemblywoman RoAnn Destito and Yonkers Sen. Nick Spano -- to take up their cause. The New York Public Interest Research Group concluded late last year that many state agencies were not complying with the law. Of 142 agencies that the group sent requests for information, about 20 percent failed to respond in a timely manner. A recent national study by the University of Florida ranked New York as average for its response time. Blair Horner, NYPIRG's legislative director, said Albany is getting more secretive. "I think the Pataki administration has been most notable for its efforts to operate in secret, and I think that's reflected in how they disclose information either under the Freedom of Information Law, or just generally speaking," Horner said. "I think the trend in Albany, which has always been too secretive, has become more secretive." Pataki spokesman Kevin Quinn said the state is doing a good job. "We take our Freedom of Information responsibilities very seriously," Quinn said. "We're proud of our efforts to ensure state agencies promote an open and responsive government. Not only do agencies process thousands of FOIL requests each year, they also now offer a tremendous amount of information on their Web sites. Today, there is no question that we provide New Yorkers with more access to state government than ever before." The public can take agencies to court for information, and many people have prevailed in their quest for documents. But victory isn't cheap -- few people get their legal expenses paid for even if they win, because judges must find that the plaintiff strongly prevails, the information wrongly withheld is of significant public interest and the agency had no cause to withhold the information. Kruger and Assemblyman Alexander Grannis, D-Manhattan, want to make it easier for victorious plaintiffs to recover their legal fees. The two sponsored a bill now pending in each house. The idea is supported by the state's Committee on Open Government, part of the state Department of State. Robert Freeman, the committee's executive director and the
state's leading expert on freedom of information laws, said security concerns
that followed the Sept. 11 terrorist attacks created a lot of rash decisions
on public information. In 2002, for example, the state Senate passed a series
of anti-terrorism bills that limited access to
information. Opponents argued the law already protected sensitive security
material. For example, Freeman said, a
bill was proposed that would have allowed government to withhold anything
related to terrorism or investigations of terrorism. "That was much too
broad," said Freeman, who said he recommends a harm test -- where
withholding information would require an explanation of why the release of
the information would be harmful. "In some instances, the
instant reaction is to say no," Freeman said. "From my perspective,
there are unique circumstances where some records or portions of records can
be withheld, and there are other times when a knee-jerk reaction is
short-sighted and wrong." One person frequently ringing
Freeman for an opinion is William Van Allen, a Hurley, Ulster County,
resident who estimates he has filed more than 500 information requests and
has gone to court over many of them. Van Allen has asked for such things as
minutes of meetings from the state Board of Elections, records from local
library and school board votes, and voter petitions from local county boards
of elections. His latest case is over lists of poll inspectors. "Going to court is
expensive and it takes forever," said Van Allen, a retiree who
represents himself. "And you have to go through two or three levels of
jerks to get there." Before pushing a FOIL request in
court, Van Allen said, he calls Freeman for an opinion. "Without him there, it
would be hopeless," Van Allen said. State Sen. Liz Krueger,
D-Manhattan, said sunshine laws aren't limited to documents and open meetings.
Making the legislative process more transparent through reforms would bring
the state more in line with the spirit of sunshine legislation. "There are a lot of
sunshine questions that aren't just how you run the Legislature,"
Krueger said. For example, she said, public authorities control hundreds of
millions of dollars of taxpayer money but operate less openly than other
government agencies. Citizens also are largely in the
dark when it comes to understanding the state budget and other issues that affect
them, like eminent domain proceedings. "It's the people's
business," she said. The Legislature operates under
different rules than the rest of the state: Instead of all documents being
presumed public unless there is a valid reason to withhold them, only certain
categories of legislative records must be released. The list is expansive --
bills, laws, resolutions, messages from the governor, audits, transcripts and
almost any other documents that would normally be covered under FOIL, Freeman
said. But one area not covered by FOIL or the Open Meetings Law is party
caucuses -- where ruling majorities essentially decide the fate of
legislation. Even lawmakers say they find
roadblocks. Krueger said she has had to file many FOIL requests to get information
that agencies are required by law to provide the Legislature. "How ridiculous is
that?" she asked. "Didn't we get elected to oversee this?" Freeman's office produces an
annual report to the governor and Legislature, detailing progress in Freedom
of Information that it would like to see. One of the sharpest criticisms in
the latest report is that "state and federal court decisions glaringly
indicate that government agencies may not be forthcoming when responding to
requests, that the law has no teeth and that failures to comply carry no
penalty of substance." To give the state more incentive
to comply with requests, the committee offered a series of legislative
recommendations, many of which have been introduced by members. Assemblywoman Susan John,
D-Rochester, is sponsoring a bill supported by the committee to invalidate
actions taken at meetings that violate the Open Meetings Law and impose a
$500 fine on the governing body. John said Open Meeting Law violations are a
problem in some smaller municipalities she represents. "I think that enforcement
has been a serious reason why some of the municipalities may feel that they
don't have to pay attention to it," she said. "There are some
communities that try to hold important meetings in a phone booth. Or try to
hold open meetings without interpreters for the hearing impaired or that are
not accessible for the disabled." The Committee on Open Government
also is pushing for a three-strikes rule against members of a public body
that habitually violates the Open Meetings Law. Members with three strikes
would be removed from office. State lawmakers, especially
those who themselves have been foiled when trying to access state
information, said it's time to give the 30-year-old law more heft, especially
in a year in which the Assembly and Senate are fighting to out-reform each
other. "If we're half of what we
claim to be," said Kruger, "then we should pull open the curtains,
raise the Venetians and let as much light onto the process as possible."
Dozens of bills dealing with
public information and open meetings are pending in the state Legislature.
Here is a sample. (Letters preceding bills indicate Senate or Assembly.): A1675/S2641: Would make it
easier for people to win back legal fees from wrongful denials of access to
records under Freedom of Information Law. A5625: Strengthens the timeline
by which requests for a record under FOIL is granted or denied. A3468: Creates a penalty for up
to $1,000 for willful failure to make timely disclosure of public records. A4402/S0496: Would expand the
amount of information available to the public, via the Internet, about
registered sex offenders. On the Web: To read these bills
or search for more, check out http://assembly.state. ny.us/leg/ or http://public.leginfo.
state.ny.us/menuf.cgi |
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