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Editorial: Cuomo should sign bill putting teeth in FOIL

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.

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