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ACCESS DENIED:
The State of New York Government’s Openness
EXECUTIVE SUMMARY
This report examines the Pataki Administration’s willingness to share information with the public. The report looks at the Administration’s performance with regards to Freedom of Information Law compliance and how state agencies and authorities use their websites to inform the public. The report also takes a deeper look at the Office of the State Inspector General, the Department of Health and the Department of Environmental Conservation, three state agencies that have a direct impact on the day-to-day lives of New Yorkers and their perception of the effectiveness of government.
SUMMARY OF OVERALL FINDINGS
Finding – FOIL compliance is too weak.
In an effort to measure the effectiveness of the FOIL, this report examined agency compliance by submitting requests to 142 state agencies and authorities covered by the law. Under FOIL, these agencies are required to respond to a request within 5 working days. The request was submitted on NYPIRG letterhead and, when asked, agency representatives were told that we were conducting a FOIL compliance survey. Despite clear statutory requirements, not all agencies complied in the allotted time.
- 21 percent of the agencies failed to respond in a timely manner.
- The agency costs to surveyors of complying with requests for information ranged from no cost to as much as $6,000.
Finding – Many agency websites fail to post annual reports.
In addition, researchers examined state agencies’ websites to see if they had posted an annual report for fiscal years 2002-2003 or 2003-2004. While not required by statute, these results are a good indicator of the priority agencies place on transparency to the public. The results are:
- Only 42 out of the 120 (35%) websites surveyed had posted annual reports for the 2003-04 fiscal year and for an additional 12 agencies the most recent posted annual report reflected the 2002-03 fiscal year.
- 19 of the websites surveyed had not posted annual reports reflecting activities from 2002-03 or later, but did have annual reports on their websites that had covered periods before the 2002-03 fiscal year. For the remaining 47 of the websites surveyed, researchers found no evidence that the agencies had ever posted annual reports.
A CLOSER LOOK AT THREE STATE AGENCIES
Finding – The Department of Health has failed to adequately deliver on its own standards of openness and accountability.
Over the years, the Department of Health has promised medical consumers comprehensive and timely information about the quality of care offered in New York State. The Department has also promised to aggressively police healthcare facilities found to be providing substandard care or in some cases violating state law. Based on this investigation, the Department of Health has failed to live up to these promises in the areas of nursing homes, physician misconduct reporting, healthcare facility incident reporting, hospital report cards and annual reports.
Finding – The Department of Environmental Conservation has failed to adequately provide the public with timely information.
In recent years, reports of different programs have been released well past their statutory deadlines, in some cases years after their deadlines. Information on the DEC website is often woefully out of date.
Finding – The staffing of the Inspector General’s office has been slashed.
The IG’s office is responsible for investigating allegations of corruption and other unethical conduct in state agencies. This report finds that the IG fails to meet the minimum disclosure requirement of maintaining a website and our analysis reveals that a substantial number of positions in the Inspector General’s office were found to be vacant. A further examination of the staffing of the IG’s office shows that there has been a 28 percent drop in staff positions since 1999.
RECOMMENDATIONS
Governor Pataki and New York State’s agencies and authorities must take steps to dramatically improve public access to governmental information, including:
Finding – The staffing of the Inspector General’s office has been slashed.
Reporting requirements can be one of the Legislature’s most effective tools for monitoring agency operations. Comprehensive and transparent reporting standards are key to monitoring and assessing the performance of state government. Legislators must be kept abreast of all of the most current reports flowing from the agencies. The public must also be able to access this information if it is to be expected to make performance-based assessments of public policies and understand how tax dollars are used on its behalf.
Recommendation – Create a “clearinghouse” website for all public reports issued by state agencies.
A website would serve as a public access point to all reports issued by state agencies. The website would be modeled after the audit section of the State Comptroller’s website.
Recommendation – Require electronic access to records
FOIL should allow the public easy access – via the Internet – to virtually all FOIL-able documents
Recommendation – Broaden the current allowance for attorney’s fees when a citizen brings a successful FOIL action against a state agency.
Set a more reasonable standard for attorneys’ fees when the plaintiff “substantially prevailed” in bringing legal action. This provision should help knock down unnecessary barriers to public access.
Recommendation – Loopholes should be closed in the state’s FOIL.
Reforms should tighten up and streamline the current trade secret exemption. The bill requires that agency information in electronic format be easily manipulated to both foster electronic information access for the public and protect confidentiality when appropriate.
Click here to read the report (PDF format)
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