Letting the Sun Shine in at the Capitol

Posted by NYPIRG on March 18, 2024 at 8:03 am

Last week was the annual recognition of the need for government openness.  First celebrated nationally in 2005, “Sunshine Week” was launched as a collaboration of national news organizations to promote transparency in government.  The idea is that governments are more effective when they allow public oversight and access to documents and proceedings as well as openness helps curb waste and increases government efficiency and effectiveness.  

The rationale for celebrating the need for government openness this past week – as compared to any other – is that March 16th is the anniversary of the birth of James Madison, the nation’s fourth President, and one of the principal figures in the Constitutional Convention.  

It was Madison who observed that “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.  Knowledge will forever govern ignorance:  And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”

Too often, Madison’s comments have proven true.  Here in New York, governmental secrecy has resulted in some of the state’s biggest scandals.  For example, recent decisions to limit the state Comptroller’s oversight of state governmental procurement decisions contributed to shocking scandals

It is unlikely that those corrupt schemes could have succeeded if the state Comptroller’s office had monitored those decisions.  People behave differently if they think they can be caught.  Corruption risks bloom in secrecy.

At its core, in a representative democracy we grant our elected officials the power to make decisions on our behalf based on our informed consent.  How can we grant such power without access to basic information – information collected and paid for by us?

Yet, the tools for New Yorkers to both know about how policies are crafted as well as information to hold power accountable, are weak.

According to a recent report and the experiences of reporters and advocates, New York State and local agencies routinely take months or years to provide public records requested via the state’s Freedom of Information Law (FOIL).  Not only are agencies incredibly slow to provide records – they often provide a fraction of the records requested and contrive endless excuses, basically daring the public to go to court.

Here are a few examples:

  • Most state agencies take more than the 20 days required by the FOIL to provide requested records.
  • 39% of counties failed to acknowledge FOIL requests within the required five business days.
  • 73% of election boards failed to acknowledge requests within five business days.

To highlight these weaknesses and to call for reforms, a coalition of more than 20 New York transparency advocates sent a Sunshine Week letter to Governor Hochul and the Legislative leaders urging them to strengthen New York’s FOIL, specifically referencing four bills:  

1. The first bill was the FOIL Timeline Act, which would set deadlines for action on FOIL requests.  This legislation responds to the near-endless delays that New Yorkers too often face when requesting government records.

2. The second is the FOIL Reporting Act, which requires agencies to annually report FOIL data such as when each request was received, how it was resolved, and more to the Committee on Open Government.  Publishing this data will show legislators and the public which agencies are complying with FOIL and which are shirking it.

3. The third is a bill that limits the Commercial FOIL Exemption Act.  Currently, businesses can claim that information that they provide the government should be kept secret due to copyright concerns.  This bill will require businesses to reapply for the exemption every three years, preventing those covered from permanently exempting government records from disclosure.

4. Lastly, the groups urged a strengthening of current law that allows recovery of attorneys’ fees in FOIL cases when an agency is found to have engaged in indefensible foot-dragging.  Currently, when a court decides that a state or local agency had no reasonable basis for denying records, the agency is now required to reimburse the requestor’s lawyer fees.  Yet, the prohibitive costs of state (Article 78) litigation means only a tiny handful of lawful FOILs are pursued in court due to the uncertainty of recovering lawyer costs when successful.

New Yorkers should be able to use FOIL to access records to which they are entitled—without delay, runarounds, or perverse agency incentives. Let’s heed Madison’s prescient warning that the lack of public oversight of government is “a Prologue to a Farce or a Tragedy; or, perhaps, both.”  Let’s let the sunshine in.