Purportedly to encourage “open government,” the New York State Legislature proposed a bill to amend § 89 of the Public Officers Law (the Freedom of Information Law, or “FOIL”) to provide for a monetary sanction against agencies when they wrongly denied access to records. This was not really new, as the statute already had a discretionary award of costs and attorneys’ fees in favor of a prevailing litigant when the agency had no reasonable basis for refusing a FOIL request. Thus, what was new was an attempt to make such an award mandatory when “the court finds that the agency denied access in material violation of [the Freedom of Information Law] and has no reasonable basis
for denying access.” As proposed by the Legislature, this law, of course, only applied to non-legislative branches of government, including municipalities.
And what exactly was meant by “material violation”? What is “material” on one day in one place may be immaterial the next day or one county to the West. What may be “personally identifying information” in one case may justify redaction, but in another case it may be held a “material violation” as the information may have appeared in a newspaper and was thus deemed already public. Further, at what point does a subjective right of privacy attach to FOIL? While case law is pretty clear that the
color of your car is not private, a home address probably is; but, of course, not in all cases. Fortunately for municipalities, they do not yet have to try to figure out this penal system yet. In a rare, and frankly surprising Veto Memorandum, the Governor provided good reasons for killing this Bill. Sadly, however, he also discloses that “comprehensive reforms” are coming anyway.
The Veto Memorandum from December, 2015, materially reads as follows: Read More