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:

These bills would amend the Public Officers Law in relation to FOIL. While I appreciate the Legislature’s attempt to further transparency in government, these bills provide an unworkable, inequitable, and piecemeal approach to FOIL reform. Specifically, the bills are limited to one branch of government further advancing a fractured system, substantially alter the due process rights of the parties and requestors, eliminate judicial discretion in processing appeals under existing law, and create inconsistencies in
judicial determinations. These concerns are not limited to the executive, but also shared by the judiciary. Specifically, the Office of Court Administration expressed strong concerns that the bills, among other things, divest the appellate division of its current direct authority and discretion in reviewing and processing appeals, even upon consent from the parties.

The purpose of the FOIL laws is, and has always been, to create an open and transparent government that all New Yorkers can hold proud. However, in addition to radically transforming the litigation process, these bills are myopic in their scope and focus only on one branch of government. This would only serve to perpetuate a fractured system of transparency and data production by intentionally excluding other branches of government.

This is directly contrary to what the Executive has proposed to do. As I stated repeatedly, any reform to the State’s FOIL laws must apply uniformly and equitably to all parties, and ensure that both the legislative and executive branches of state government are subject to the same FOIL provisions. To that end, I will be advancing comprehensive FOIL reform in the next legislative session that applies equally to the Executive and the Legislature, improves transparency, and increases accountability. I look forward to working with the bills’ sponsors and interested stakeholders to address these important issues.

A.114
_____
This bill would substantially alter the balance of appellate rights between state agencies and non-state agency requestors. The condensed timeframe would only apply when a state agency appeals an adverse decision, which is necessarily an inequitable outcome. Conversely, a non-state agency party would continue to have the longer time periods for appeal that are currently allowed by law.

Second, this bill would eliminate judicial discretion regarding the time available to perfect an appeal. For example, it would conflict with Civil Practice Law and Rules Section 5530(c), which allows each department of the appellate divisions to set their own rules governing the time to perfect an appeal, and/or when an appeal is subject to dismissal for failure to prosecute and/or deemed abandoned. It also fails to provide for an extension of the 60-day timeframe, even on consent.

Finally, the bill would put a substantial burden on state agencies to perfect their appeals and may make it difficult for agencies to serve and file appellate records and briefs, possibly compromising a state agency’s due process rights. Before a brief is filed, the parties to a civil appeal must settle the record on appeal. It is not uncommon for this process alone to take more than 60 days.

A.1438-B
________
There are also several problems with this bill. Not only does this bill allow for attorney’s fees to be assessed solely against a state agency, rather than uniformly against both parties, but it would allow attorney’s fees to be assessed against a state agency, even if the state agency ultimately prevails. It would also require a trial court to assess attorney’s fees against an agency when an agency denies access to FOIL requests in “material violation” of FOIL and with no reasonable basis for denying such access. However, the
bill fails to define what a “material violation” is; thus, allowing each court to define the scope of the term, and leaving litigants without any clarity.

For all of the reasons outlined above, the bills are disapproved.

Thaler & Thaler, P.C., previously raised many issues and problems with this proposed law, such as: (i) its failure to appreciate and address how often FOIL is misused; (ii) its clear indifference to, or lack of understanding of, the many ambiguities that exist within FOIL (even the most learned of judges have been reversed upon appeal due to an interpretation of law or differing emphases on statutory construction rules); and (iii) the fact that this law would have made municipalities (and their clerks and records access officers) fiscally liable for figuring out the nuances of FOIL. If they get it wrong, even in good faith and with a rational basis for redaction or withholding a document, or even if they got it right but the Court got it wrong, then a fiscal penalty applies. Worse, the reality is that every citizen in the municipality then pays such a penalty, and a Court is not free to decide upon a case-by-case basis whether the frustration of citizens’ rights was the motive, as opposed to an innocent mistake or a reasonable interpretation of Public Officers Law Articles 6-A, 7, or the myriad of common law and statutory rules that support, or do not support, in each particular case, the withholding or redaction of some documents or information.

And if you think municipalities might have had it bad under this proposal, just think about police agencies. FOIL and the “ongoing investigation” rules do not fit or work well within the political and structural framework of FOIL in any rational sense—the rules for what may, or may not, be withheld
are as clear as mud.

So, in light of the upcoming FOIL reforms, our overall recommendations remain as follows:

1. Make sure you are correct when you apply FOIL exemptions and exceptions, especially
whenever you deny a FOIL request.
2. Document and explain all denials, and make sure to have a standard notice of the right to appeal,
with clear instructions as to the timelines and requirements for an administrative appeal of any denial
or partial denial of any FOIL request.
3. Stick strictly to your appeals and review processes, document the legal and factual basis for
every denial, and make sure such determinations are based upon, and supported by, the record.
4. Finally, if your municipality does not have solid procedures requiring administrative appeals,
written with proper regard to due process, then consult municipal counsel and get better processes in
place.

It is always best to learn what not to do when reading about someone else’s lawsuit.

Also remember that an administrative appeal is not a rote event or merely a chance to document the
record. Yes, it serves such a purpose but, more importantly, it is a chance to “get it right” before you