03/10/07

Sunshine Week 2007

NY's FOIL laws can frustrate those who seek records

By MICHAEL HILL
Associated Press Writer

ALBANY, N.Y. (AP) -- Robert Hawley wondered who the mayor of Penn Yan was calling on his village-issued cell phone. So in March 2004, he filed a Freedom of Information Law request for a list of all calls.

The Finger Lakes village denied his request. He appealed. He was denied again. He sued. The village gave him listed numbers only. A court said that was all he was entitled to see. He appealed to get the unlisted numbers, too. He lost. Three years on, the 54-year-old farm worker is seeking a motion to reargue.

"I thought they would just hand the numbers over," said Hawley.

The New York law that requires state and local governments to disclose public documents is successfully used thousands of times a year by businesses, reporters and interested citizens. But many who rely on the law complain that it can be complicated if initial requests are denied. Lawsuits like Hawley's can take years.

"It's very difficult for a regular citizen to access FOIL ... it's very cumbersome and you have to keep at it again and again," said Rachel Leon, head of the New York chapter of Common Cause.

New York does not keep track of how many FOIL requests are made of state and local governments. But there are tens of thousands annually. Looking at three large state agencies, health averages around 2,000 requests a year, transportation 3,000 and environmental conservation received more than 11,000 last year.

These agencies do not keep track of rejection rates, though transportation officials say the "vast majority" are approved.

Under state law, denied requests can be appealed to the agency. New Yorkers looking to bolster their case can ask the state Committee of Open Government for a legal opinion. The opinions are advisory, but committee executive director Robert Freeman believes they carry weight.

If all other remedies are exhausted, citizens can file a civil lawsuit against the state. Last year's highest profile FOIL victory in New York shows how complicated and costly that can become. The Times Union of Albany sued in June after leaders of the state Legislature refused to divulge the names of lawmakers who sponsored millions of dollars in discretionary spending (a.k.a. "legislative pork").

The paper won. A judge said lawmakers failed to provide a "rational basis" for withholding the names and ordered the state to pay $33,000 for the paper's legal fees.

Times Union Editor Rex Smith noted that the paper was able to rely on the resources of its owner, Hearst Corporation, and a lawyer, Eve Burton, with an expertise in First Amendment issues. In addition, dozens of media and good government groups supported the paper when they faced off against lawyers working for then-Attorney General Eliot Spitzer.

"I think for an average citizen, someone without the resources of a Hearst Corporation, this fight would likely not have been successful," Smith said.

Freeman agreed the sort of legal fight the Times Union pursued can be daunting. But he said the average citizen is more likely to make narrower requests of local governments, as opposed to the those sorts of "global" requests by the media.

"All of us rely on the news media in so many instances ... to take the extra step," Freeman said.

But even lower profile FOIL lawsuits, like any legal action, can take time and money. Consider Walter Ervin, a retired dentist in Elmira who, by his lawyer's estimate, spent thousands trying to get information from Southern Tier Economic Development, Inc. about a planned downtown arena. Ervin lost in trial court and then before an appeals court, which ruled last year that the agency was not covered by FOIL.

Ervin declined to seek an appeal.

"I'm 80 years old," he said, "I'm tired of fighting."

New York is not among states with laws that include fines for denying public records. In neighboring New Jersey, for instance, public officials who "knowingly and willfully" violate the state's open records law can face a $1,000 fine for a first offense.

Freeman said he has studied states with significant fines and found they rarely impose them, in part because "judges don't fine or put their friends in jail." Other critics contend it's very difficult to prove that someone knowingly violated the law.

New York did take a number of steps to strengthen FOIL toward the end of the Pataki administration, including provisions that require governments to act promptly on information requests and a broadening of the ability of successful litigants to recoup legal expenses.

Smith believes the legal fee provision is important to keep government officials on notice there are consequences for keeping public records secret.

"There had to be some ruling like this for public officials to take the Freedom of Information Law seriously," Smith said.
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On the Net:
Committee on Open Government: http://www.dos.state.ny.us/coog/coogwww.html




FOI by the numbers

The number of inquiries made to the state's Commission on Open Government regarding access to records over the past four years:
Total:
2006: 4,497
2005: 4,394
2004: 4,372
2003: 4,895

By the public:
2006: 1,424
2005: 1,360
2004: 1,250
2003: 1,560

By local government officials:
2006: 1,796
2005: 1,601
2004: 1,737
2003: 1,739

By the news media:
2006: 825
2005: 953
2004: 838
2003: 800

By state agency officials:
2006: 410
2005: 421
2004: 508
2003: 727

By state legislators:
2006: 42
2005: 59
2004: 39
2003: 45

By commercial interests (they stopped using this category after 2003):
2003: 24

Number of opinions issued by Committee on Open Government
2006: 676
2005: 612
2004: 647
2003: 663

Number of inquiries regarding open meetings to the Committee on Open Government over the past four years:
Total:
2006: 1,827
2005: 1,653
2004: 1,928
2003: 1,897
By the public:
2006: 561
2005: 477
2004: 537
2003: 567

By local government officials:
2006: 731
2005: 677
2004: 812
2003: 779

By the news media:
2006: 428
2005: 396
2004: 427
2003: 422

By state agency officials:
2006: 96
2005: 91
2004: 140
2003: 124

By state legislators:
2006: 11
2005: 12
2004: 9
2003: 4

By commercial interest:
2003: 1

Number of opinions:
2006: 216
2005: 184
2004: 207
2003: 161
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SOURCE: New York State Commission on Open Government