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Another Voice: Freedom of Information Law needs strengthening

By John Kaehny

New Yorkers of all political stripes agree that government transparency is a good thing. If we the people do not know what our government is doing in our name and with our money, we have no hope of holding our government accountable.

The good news is that as the internet has become part of modern life, the everyday operation of government has become vastly more transparent. Online you can find a wealth of information including: the state budget, state expenditures, legislation, most political contributions and most lobbying.

Better still, “open data” has created a new expectation that government should publish digital information before the public has to ask for it. But all of this data – though extremely useful – do not do a very good job of telling the public the whole story about how and why decisions are made, and who is influencing and making those decisions.

Even in the era of the smartphone, the cornerstone of government transparency in New York remains our Freedom of Information Law – which was celebrated recently during Sunshine Week. FOIL allows anyone to request a record from our state or local governments, and requires government records to be available to the public, unless there is a good reason they should not be – like infringing on personal privacy or imperiling public safety.

Over the years, records released through FOIL have fueled investigative journalism that has led to major reforms by shedding light on everyday government in cities, counties and towns across the state. New Yorkers love FOIL. We estimate that New York’s state and local governments get at least 150,000 FOIL requests a year.

But, like any law, FOIL only works when it’s obeyed and enforced. FOIL is enforced when the people – or more likely their lawyers – go to court and ask a judge to order government to obey the law. Going to court costs money, and in New York, judges often do not award legal fees even when the public “wins” and gets records released. Unfortunately, very few people can afford thousands of dollars, sometimes tens of thousands, in legal fees to get a government document released.

Agencies know this, and frequently drag their feet, provide incomplete information or ignore FOIL requests – a problem that has gotten worse since the decline of big newspapers with big legal budgets.

Fortunately, there’s an obvious fix to this problem: Legislation introduced by Democratic Assemblywoman Amy Paulin and Republican Sen. Patrick Gallivan, which is supported by the state’s Committee on Open Government and more than a dozen prominent transparency and watchdog groups.

The Paulin/Gallivan bill greatly strengthens FOIL by requiring judges to award legal fees when government has “no reasonable basis for denying access to the records.” New Jersey did something similar more than 10 years ago, and experts there say it’s been the single most important improvement in the history of its Freedom of Information of Law.

John Kaehny is executive director of Reinvent Albany and the New York representative of the National Freedom of Information Coalition.

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