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The Editorial Board: New York’s commitment to open government belongs in its constitution

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To better guarantee New Yorkers' rights to open government and freedom of information, Gov. Kathy Hochul should emulate Florida and push to include those rights in the state constitution.

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Freedom of information laws are supposed to give citizens the ability to easily access facts and figures about the governments they fund. This was based on the entirely correct idea that American governments are of, by and for the people. In New York, there are only a few exceptions to the rules on openness.

Yet, this state does a terrible job of responding to the informational needs of the public, including news reporters whose clients are the public. The reason is obvious: The law is insufficient to the need. Statues need not only to be stronger but grounded in a constitutional amendment.

New York isn’t alone in abusing its laws on open government; around the country, governments at all levels have twisted Freedom of Information laws into tools meant to thwart the very goal of those statutes. It’s a cynical ploy by elected officials who turn on the people they are supposed to represent.

New Yorkers, therefore, should be pleased that on her first day in office, Gov. Kathy Hochul promised to speed the task of complying with FOI requests.

“To me, it’s very simple,” Hochul said. “We’ll focus on open, ethical governing that New Yorkers will trust.” To that end, she said she instructed her counsel to craft an expedited process for completing Freedom of Information requests.

If she follows through, it will count as a good start on everything else that needs to be done to better acknowledge the superior position New Yorkers hold in relation to their governments. It’s their information.

Florida recognizes that. Its commitment to open government is grounded in the state constitution. There, the Reporters Committee for Freedom of the Press observed in 2003, “there’s no messing around with open government.”

New York needs that kind of reputation and, as if to underscore the point, the conservative Empire Center for Public Policy reported this week that it had obtained a 2018 directive that hindered the cause of open government. The policy required “sensitive” requests for information to be sent first to then-Gov. Andrew Cuomo’s office for a four-week process of review and approval.

The policy, it said, included several factors for deciding whether a request for information qualified as sensitive. They included:

• “Is it from a media outlet?”

• “Is it related to something political?”

• “Is it connected to potential legal action against the Department?”

•“Is it non-routine information?”

None of this is permitted by the law, which allows five days for review and approval and which doesn’t care who filed the request, whether it touched on politics and whether it is routine. The laws does allow information on some legal matters to be withheld, but not all of them. This policy counts as a violation.

No one should able to do that – not a governor or the newest member of a village board. That it happens underscores one of the weaknesses of New York’s Freedom of Information Law: The only consequence to violating it is public exposure and the possibility of having to pay the legal costs of anyone who had to go to court to pry the information loose.

Thus, it is no surprise that the Cuomo administration resisted releasing information about nursing home deaths in the early part of the Covid-19 pandemic. Nor was it shocking that, for a long time, the administration of Buffalo Mayor Byron W. Brown made it difficult to get information on crime in the city.

That problem, at least, has eased in recent years, but it’s not enough for New Yorkers to rely on the eventual compliance of any given mayor or supervisor or governor. As with Americans’ freedom of speech, New Yorkers need guarantees.

Hochul could be transformational by pushing for a constitutional amendment that declares opening meetings and freedom of information sacrosanct. By making the right undeniable and attaching penalties for violations – they include jail time or eviction from office in some states – New York’s new governor can strengthen the state’s commitment to democracy by making it more difficult for public officials to operate in the shadows.

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