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COMMENTARY

Expert's ouster provides chance to strengthen public's right to know

It’s been a month since New York’s leading expert on open government was fired for sexually inappropriate behavior toward a female reporter.

But his ouster, rather than sending good-government types into crisis mode, actually provides an opportunity to do what was never done during his tenure: Put real teeth in the state’s laws to protect the public’s right to know.

While he was the go-to expert for anyone interested in applying New York’s anemic laws to public officials who regularly flout them with impunity, Robert J. Freeman was never known for pushing the envelope for stronger laws like those in other states.

The public should demand that a new executive director – to be appointed by the governor  – be committed to doing just that.

"I think there should be much stronger direct enforcement," said Susan Lerner, Common Cause New York executive director, putting her finger on a key weakness of New York’s Open Meetings and Freedom of Information laws.

Rather than going after government bodies and officials who ignore the rules, the Committee on Open Government – which Freeman headed – merely issues advisory opinions. Instead of empowering that agency, New York’s laws put the burden on individuals to hire a lawyer, file suit on their own and then wait a year or two to try to recover attorney’s fees if they win.

That’s in contrast to states like Florida, where local state attorneys can prosecute violators and $500 fines can be imposed; or Connecticut, where the state’s Freedom of Information Commission can hold hearings and impose fines of $20 to $1,000 on violators or those found to have filed frivolous complaints.

Besides lacking enforcement mechanisms with teeth, New York’s laws fall short in myriad other ways that have been well documented by the Buffalo Niagara Coalition for Open Government, which has gotten statewide attention for its reports on local government failures to comply with current laws, as weak as they are.

The coalition – which monitors government meetings, examines websites and prods local officials – has called for New York’s Open Meetings Law to be amended to mandate that meeting agendas and supporting documents be published online at least 72 hours before a meeting, that minutes be posted within two weeks after the meeting and that the public be allowed to speak before lawmakers vote.

Coalition President Paul Wolf notes that bodies like the Buffalo Common Council and Erie County Legislature typically let citizens speak at committee meetings only. Though that's important because it is where issues are first hashed out, the public gets no voice at the action meetings where matters are formally decided.

"At every public meeting, there should be an opportunity to hear from the public," said Wolf, an attorney who heads the volunteer organization. "New York’s law is very weak. It greatly needs to be amended to bring it up to modern times."

That includes giving someone enforcement authority, he added, pointing to the same shortcoming Lerner highlighted. At the very least, the coalition wants the state comptroller to do compliance audits so the public knows which agencies are following the law and which are not.

Reinvent Albany Executive Director John Kaehny points to an entirely different problem – there are so many to choose from – with New York’s laws: agencies are drowning in the volume of Freedom of Information Law requests they get, which gives them an excuse to delay responding to ones they don’t want to respond to.

As an example, Kaehny said when his group looked at FOI requests to New York City’s Metropolitan Transportation Authority, it found that two-thirds of the 9,000 requests were for police incident reports, which shouldn’t require such a rigorous process in the first place. Streamlining things by putting more such information online would help clear up the backlog and also allow the public to know how many requests are being filed and how they’re being dealt with, something he said no one has a handle on now.

"You can make the Freedom of Information Law work better for more people," he said.

At the end of the day, though, it still comes down to enforcement and having someone at the committee who will use his or her bully pulpit to press for the kinds of changes New York needs.

When an Erie County Legislature chairman infamously bragged years ago that he "went into another room" to technically avoid a quorum, and a former state senator said he wasn’t going to worry about "technical rules" when shutting out the public, it’s clear that New York’s weak laws encourage public officials to dis citizens.

Kaehny is not sure fines are the answer because he fears judges would be loath to impose them. But that’s not a problem elsewhere.

In 2004, a county commissioner in Florida served 49 days in jail as the first person incarcerated under the open meetings section of that state’s Sunshine Law. Nor has the state let up since then. Earlier this year, two council members in a Florida town were fined $200 and $100, respectively, for holding an illegal meeting.

New York needs laws with that kind of teeth – and an open government advocate who will forcefully push for them.

 

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