New York News Publishers Association

Mark C. Mahoney, Editorial Page Editor,

The Daily Gazette

Citizens must be advocates for themselves to fight government secrecy

We can blame the politicians for keeping the secrets.
We can blame vaguely worded transparency laws that fail to impose consequences on public officials who flout the laws of transparency.

We can blame a governor and legislature for failing to do more.

Certainly, all those factors contribute to a government in New York state that is far from transparent and which allows and encourages public officials to withhold public information and to meet in secret to discuss the public’s business.

The open government landscape in New York was always cloudy. But with many local newspapers either closing or significantly scaling back on reporters, with newspaper companies that once used their profits to fight government secrecy no longer having the financial resources to challenge government boards like they once did, with the state Committee On Open Government retreating from its advocacy role to a more resource-based agency, and with new technology giving public officials more ways to hide their activities, the challenge to keep government open has gotten more difficult.

So if citizens want open government, they’re going to have to take a more active role in helping themselves keep their governments open.

The first step is becoming familiar with the state’s Open Meetings Law and the Freedom of Information Law (FOIL), and learning how to use them.

You don’t have to have a law degree to be an effective advocate for your right to know.

EDUCATING YOURSELF
In fact, once you’ve learned the basic rules regarding access to records and public meetings, ordinary citizens can be effective advocates for themselves and their neighbors when it comes to holding government accountable.

This is where the state Committee on Open Government is an excellent resource for citizens.
Google COOG or type in the web address: https://opengovernment.ny.gov/.

You can read the text of FOIL and Open Meetings Law on the site, as well as advisory opinions made response to specific challenges.

But for a streamlined lesson in the state’s transparency laws, click on the Freedom of Information tab up top and scroll down to Publications. The first item under that tab will be a publication called Your Right to Know.

It provides a short synopsis of the Freedom of Information Law and Open Meetings Law, highlights the general rules, offers answers to basic questions, and even provides a sample Freedom of Information Law request form. Copy and paste it into a file and fill in with details of the documents you seek. Then deliver or email it to a government official.

The Your Right to Know document is downloadable and printable, so every citizen can have a copy of it handy as a reference when filing a FOIL request or attending a public meeting.

SOME TIPS
Before you file a FOIL request, it’s best to first identify the records officer for the government body and ask that person for a record. A lot of them will be accommodating and either give you the record, tell you where to find it, or help you refine your search.

Also, many government boards these days post frequently requested records on their websites, so check there before filing a FOIL request. It might save you time and effort.

Regarding access to public records, there are 11 reasons why a board can deny a record, most related to law enforcement, employee contract talks, legal strategy and disclosure that would create an “unwarranted invasion of privacy.” If the record doesn’t fall under one of those exemptions, it must be released.

Governments will try all kinds of word tricks to deny citizens access to records. Don’t fall for them. Knowing the rules will help you there.

With regard to the Open Meetings Law, governments will use similar tactics to meet behind closed doors in executive session illegally, such as saying they’re going to discuss “personnel.”

The parameters for executive sessions are much more narrow and are spelled out in the Right to Know pamphlet. If you’re at a meeting, be proactive and demand to know the specific reason board wants to go into executive session and hold them to the definition in the law.

Government bodies are subject to strict deadlines for responding to and filling requests for information. This is where the state’s lax enforcement structure comes into play.

Government officials who violate the laws will often force citizens to challenge their decisions in court - a costly and time-consuming process that ordinary citizens might not want to undertake. They’re counting on that.

Journalists and good government groups continue to fight for your right to know. But they can’t do it alone. If open government is important to you, be your own advocate, learn the basics, and join the fight.

Jim Zachary,

CNHI Director of Newsroom Standards & Practices

Protecting your right to know

State Sunshine Laws should not only codify the public's right to know but should facilitate access to both records and meetings while providing real penalties when elected and appointed officials block or stall access.

All government business is your business.

Government can only be of, by and for the people when it is out in front of the people.

State Sunshine Laws should not only codify the public’s right to know but should facilitate access to both records and meetings while providing real penalties when elected and appointed officials block or stall access.

Unfortunately, as a combined CNHI and Associated Press nationwide report published this week shows, in the vast majority of states public access laws have little to no teeth, and in the states that do have stiff penalties for violations, enforcement is sparse at best.

That needs to change.

Every last penny government spends is your money.

It is your right to know every transaction, every decision, every expenditure and every deliberation of your government.

Whether at the White House, the statehouse or the county courthouse, all the documents held in government halls belong to the people, and all the business conducted by our governors is public business.

The understanding that we are the government and the government is us is primary to our Republic.

The only powers held by federal, state or local government are the powers we give.

So, whether it is Congress, the state’s General Assembly, county commission, city council or the board of education, it is your right to know all the people’s business.

When you attend local city, county or school board meetings, and ask questions and hold elected representatives accountable, you are not minding their business, you are minding your own business.

When you make a public records request, you are not asking local records custodians to give you something that just belongs to them or the office where they work. You are simply asking for your own documents. Those custodians need to understand that.

The Bill of Rights guarantees the freedom of the press for very important reasons. The founders built a hedge of protection around the media because the press, as the Fourth Estate, guards and fights for the public’s right to know, holding government accountable.

Journalists help keep an eye on government, shine the light on its actions, fight the good fight for access to documents and meetings, champion transparency and defend the First Amendment because of a core belief in your basic, fundamental rights — principally, your right to know.

Access to public information, though, is not just for the press. It is for each and every one of you too.

Kevin Goldberg, First Amendment Specialist for the Freedom Forum

Attention, any publication wishing to reprint this article please include the following attribution:

Kevin Goldberg is the First Amendment Specialist at the Freedom Forum, a non-partisan, non-profit organization based in Washington, DC.

Perspective: Free Speech and Press Need Freedom of Information

“The right to speak and the right to print, without the right to know, are pretty empty.”

These are the words of Harold Cross, author of “The People’s Right to Know,” a book largely regarded as inspiration for the federal Freedom of Information Act (FOIA), which Congress passed in 1967.

The FOIA – and its state-level counterparts – guarantees us the right to request records from any government agency, allowing the public to oversee the activities of government. It not only enhances our exercise of the rights to free speech and freedom of the press (as well as the other three freedoms – religion, assembly and petition) but also directly benefits society by potentially exposing government waste, abuse and corruption.

That’s why the News Leaders Association, formerly the American Society of News Editors, created Sunshine Week in 2005. (Full disclosure: I was general counsel to that organization for more than 20 years.)

It coincides with the March 16th birthday of James Madison, who, along with drafting the First Amendment and the other nine amendments of the Bill of Rights, is considered the “father of freedom of information.” Sunshine Week is a celebration of all things open government.

In addition to media stories and commentaries about the importance of open government, there are often conferences and other events convened by organizations around the country to discuss these issues. There’s also a lot of fun stuff too: trivia nights, happy hours and other social events. The Madison, Wis., chapter of the Society of Professional Journalists celebrated Sunshine Week 2015 by partnering with a local brewery on a “Sunshine Wheat” beer. Even federal, state and local officials get involved, often with symbolic gestures, but sometimes beyond mere lip service, with hearings, resolutions, and legislation designed to make government more open and accessible to the public.

The Freedom Forum has previously hosted a National Freedom of Information Day Conference and continues to celebrate Sunshine Week. You should too.

That’s because while many view the FOIA as a federal law for journalists to use in their role as watchdogs of government activity, access to records provides an ongoing benefit to all of us.

Reporters from the New York Times used FOIA to track the expenses and meetings of Scott Pruitt, the former head of the Environmental Protection Agency, who resigned in 2018 amid allegations of corruption. A blog associated with the Times also used FOIA to learn that the Department of Agriculture received 64 complaints from 2007 to 2009 about foreign objects such as glass, a rubber glove and an insect found in hot dogs sold to the public. (I can hear some of you saying, “Actually, I’d rather not know that.”)

At the local level, the Associated Press used FOIA in the wake of Hurricane Katrina to determine that 122 other levees built by the Army Corp of Engineers around the country contained deficiencies. That FOIA request brought the issue to the attention of the residents of those 122 communities, allowing them to take steps to protect themselves and their homes from flood risk and resulting in repairs where necessary.

But it’s not just reporters who use FOIA. Ordinary people – even those who are skeptical of the role of the media in overseeing government – use the law to great effect. In 2019, students at Back of the Yards High School in Chicago used public records to learn that the two white police officers at their mostly minority school each had substantial misconduct complaints against them, including allegations of use of force, false arrest and verbal abuse, often against people of color. The students then used this information to ask for the removal police officers from their public schools.

Other Gen Zers have used their digital skills to access and analyze public records, especially large datasets, through technology.

Jack Sweeney, a freshman at the University of Central Florida, has used publicly available flight information to track SpaceX founder Elon Musk’s private jet – which he then reported via Twitter @ElonJet. As Russian forces invaded Ukraine, Sweeney launched @RUOligarchJets, which tracks the movement of Russian oligarchs.

On a larger scale, FOIA requesters should applaud the recent creation of Gumshoe by graduate students at NYU’s Center for Data Science. Gumshoe is an artificial intelligence tool that sorts through large swaths of information. This is more necessary than ever given the explosion of information that is created by the government every year and the hundreds, if not thousands, of pages of text that one might receive via a public records request. The Gumshoe team has already received funding including a $200,000 grant from the Patrick J. McGovern Foundation to build out the product for widespread distribution.

You don’t have to be a journalist or computer genius to use public records laws – and certainly not to benefit from their use. That’s why we all should celebrate Sunshine Week and public records all year round.

Robert Harding,

The Citizen, Auburn

To mark Sunshine Week, NY state must be better at fulfilling FOIL requests

New York's Freedom of Information Law is important for journalists, especially those like me covering state government.

The law, known as FOIL, ensures that the public has access to certain records. There are few exceptions, but most documents are available to the public (and the press).

This seems simple, right? If a document can be provided to a reporter or a member of the public, it should be without delay. And, in most cases, it is. It just may take a long time to get it.

That is the subject of this column and based on my experiences with three state agencies, including one FOIL response I'm waiting for (more on that later).

FOIL request No. 1

After Butler Correctional Facility closed in Wayne County, I worked on a follow-up story about the shuttered prison's status. One part of that story I wanted to tell is how much the state was spending to maintain the facility.

I contacted the state Department of Corrections and Community Supervision and asked for the dollar amount — the total cost of maintaining the facility. I was told I would need to submit a FOIL request, so I did.

I knew this was information requested in the past by other media outlets. I didn't think it would take long to receive a response.

I was wrong. My request wasn't fulfilled for nearly a year. While waiting for the response, I decided to run with my story without the price tag because it was clear I would have to wait for what was a small detail in this bigger story about a closed prison.

FOIL request No. 2

When I learned the state fair was scaling back its concert lineup, I asked for the total spent on fair entertainment dating back to 2019 — the last pre-pandemic fair. I have requested this information in the past and it didn't take long to get it. Most times, it was provided the same day I requested the amounts.

Not this time. I was told I would need to submit a FOIL request. About a month later, it was fulfilled. Five cells from a spreadsheet were copied and pasted into a document, then sent to me. It took a few weeks to send me something that took a few minutes, perhaps seconds, to compile.

FOIL request No. 3

This is my most recent request. I asked a state agency for a copy of a contract. After submitting this FOIL request a few weeks ago, I received a response and was surprised that the agency punted it to next month.

The document I am requesting should be available as a PDF and could be easily sent to me. But if there is one thing you can learn from my other experiences, it's that the state loves to stall.

The fix

It's simple: The state should be more proactive in publishing public documents and fulfilling FOIL requests instead of seeking to obstruct access to this information. Too often, it feels agencies are using the Freedom of Information Law as cover for acting in bad faith. They can say they are following the law, but they are ignoring the spirit of it.

During Sunshine Week, the state should commit to doing a better job of providing access to public information. In every example I gave, a lengthy FOIL process is not necessary. These are requests that should be fulfilled within 24 hours, not 24 days. 

From the Niagara-Gazette

Calling for change to NY's 'broken' public records request system

Government transparency advocates say New York’s laws often make it too difficult and too costly for members of the public to obtain what should be public information.

With that in mind, representatives from more than 30 organizations and a handful of state lawmakers held a rally on Tuesday in Albany to call for passage of measures they believe would go a long way to addressing problems within New York’s “broken” public information disclosure system.

The groups, which included the New York Coalition for Open Government, the New York Public Interest Research Group, and the League of Women Voters, are eyeing the passage of four pieces of proposed legislation, all designed to improve the responsiveness of public agencies to requests filed under New York’s Freedom of Information Law, more commonly known as “FOIL.”

“The current design of our FOIL system is backward and unworkable,” said Erika Smitka, deputy director of the League of Women Voters. ‘There’s a lack of transparency and clarity in a process that’s meant to provide just that. FOIL laws are a method for citizens in a just democracy to be able to hold their government accountable. The way our laws are set up now, it enables not only government agencies but corporations and businesses to skirt the system and utilize loopholes to avoid providing access to information that should be accessible.”

The transparency advocacy groups gathered in Albany this week to mark Sunshine Week, which they described as the “perfect time” for New York’s leaders to “confront and acknowledge the challenges” facing the state’s public information system.

Sunshine Week is designed to educate the public about the importance of open government and the dangers of excessive and unnecessary government secrecy. It is held each year in mid-March around March 16, which is National Freedom of Information Day and the birthday of President James Madison who is widely considered the “Father” of the U.S. Constitution.

During Tuesday’s press conference, transparency advocates said state and local agencies routinely take months and even years to provide public records requested under the FOIL in New York. They said 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.

Advocates for reform measures believe passage of four pending bills would go a long way to improving the responsiveness of the system, including one sponsored by state Sen. John Liu, a Democrat from Queens, that would make it easier for individuals and groups that have successfully challenged denials of record requests in court to obtain reimbursed for their legal costs from public agencies.

“Freedom of information,” said Liu, who took part in Tuesday’s press conference. “Whose information? Not my information. Not information that is owned by the government. It is information that belongs in the hands of the people. When people have information, that is the only way that we can have a truly democratic society, a government of the people, by the people and for the people.”

Williamsville attorney Paul Wolf, who is the founder and president of the New York Coalition for Open Government, said under New York’s present set of rules, it is often the case that residents, news outlets and non-profit advocacy groups must go to court to attempt to force public agencies into compliance with FOIL, which can get costly.

“In New York state, unlike many other states, there are no penalties for violating the FOIL law or the open meetings law,” Wolf said. “There’s no government agency that monitors compliance with those laws. There’s no enforcement of those laws, other than citizens filing a lawsuit, which is a pretty burden to put on the public but that’s the way it works in New York state.”

The other pieces of reform legislation supported by the advocacy groups include:

The FOIL Timeline Act, which would speed up the FOIL process by deeming requests constructively denied if the agency does not acknowledge requests within five business days. The bill also makes 30 days the maximum amount of time an agency may take to deny requests, and 60 days the maximum to provide them. A firm cap of 60 days will allow requestors to get documents and, if necessary, appeal and sue within a reasonable timeline, advocates said.

• FOIL Reporting Act, which would require agencies to publicly report basic information about how they deal with the FOIL requests they are receiving. Advocates noted that, under the state’s current rules, the public must literally FOIL the agency FOIL logs to analyze the state of information requests. The bill 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. Advocates argue that publishing such data will show legislators and the public which agencies are complying with FOIL and which are shirking it and
• The Limiting the Commercial FOIL Exemption Act, which requires businesses applying for exemptions from the public release of information deemed “proprietary” to reapply for the exemption every three years. Transparency advocates said the current system allows such information to be exempted from public disclosure indefinitely, preventing taxpayers from being able to see who is getting their money and what goods and services vendors are providing.

Mark C. Mahoney, Editorial Page Editor,

The Daily Gazette

Be watchful of state, local governments trying to deny right to know

When people hear about the threats of government secrecy, they’re probably thinking about statewide politicians taking big gobs of money from political contributors and secretly trading legislation and influence to funnel state contracts to their business associates, friends and family.

That does happen. New York is notorious for back door dealing and secret negotiations.

Sometimes, those secret deals result in the people involved getting sent to prison. Sometimes, the people involved get luxury box seats for their favorite football team.

But while those instances grab the headlines, it’s what happens on the local level that should grab people’s attention.

The actions of local politicians to shut the public out of government actions is where individual citizens make the biggest difference. And it’s where they should most focus their attention.

This week is Sunshine Week, a time when members of the media, citizens advocacy groups and like-minded transparency advocates in government come together to rally the citizens in the fight for their right to know. It’s designed to serve as an educational tool and a reminder of the need for citizen vigilance in ensuring transparency in government.

Local public officials are using secrecy in many different ways to help themselves, shield themselves from public criticism or responsibility, and to manipulate the system to their way of thinking.

Here are a couple of recent examples:
In the Ulster County town of Saugerties last month, the Town Board proposed a resolution to categorically deny all records requests related to active investigations and documents protected by attorney-client privilege.

The proposal, which would have violated the state’s Freedom of Information Law (FOIL), came in response to a former councilman’s request for details of a police investigation into a current member of the council.

Rather than address the specific request for information, the board saw it as an opportunity to deny all citizens access to all such records all the time. Under scrutiny, the board withdrew the motion and instead denied the ex-councilman’s specific request.

In Buffalo last week, a judge rejected an argument by the New York State Coalition for Open Government, which sued the city of Buffalo over the creation of a salary review commission that approved significant and costly pay raises for some elected officials.

The reason for rejecting the advocacy group’s argument: It wasn’t filed within the four-month statute of limitations.

That short statute of limitations itself is a tool for the government to deny access to records. A court using it as a reason to thwart the public’s interest is another failure of the system.

In January, the Community Education Council, a public parent board in Brooklyn, blocked more than a dozen citizens from joining its Zoom meeting for not being “in alignment” with its community agreements — a clear violation of the Open Meetings Law. It also blocked a New York Post reporter from attending the meeting.

Throughout New York, local governments are going to court to fight state laws designed to provide access to police disciplinary records.

Access to these records would allow the public to know whether officers violating citizens’ rights are being adequately punished.

In some places, government officials are violating the Open Meetings Law by holding closed-door executive sessions without a legal excuse, failing to post meeting notices in advance and failing to share public meeting documents with citizens in attendance.

Local governments are ignoring statutory deadlines for responding to Freedom of Information Law (FOIL) requests or outright denying access to public records, knowing that a citizen’s only recourse is taking the government to court.

And police departments and district attorneys are withholding information about investigations by claiming a blanket exemption for interfering with an ongoing investigation, without saying exactly how such investigations would be tainted with the release of certain information.

These are the kinds of actions governments take or try to take all the time to keep information away from we the people.

While these specific actions might not be taking place in your community, they are examples of what citizens should watch out for.

And they’re a reminder of why it’s so important for citizens and the media to remain vigilant about demanding transparency.

From thedailystar.com,

by Josh Kelety/AP, Eric Scicchitano/CNHI News and Carson Gerber/CNHI News

Review finds states’ rules often put the burden of enforcing open government on private citizens

Dana Holladay-Hollifield has worked as a nurse in Alabama for years, but never was her pay as low as it was at Huntsville Hospital.

She wondered what executives at the not-for-profit facility made, so she filed a public records request to find out. The hospital is governed by a public board, she said, and therefore subject to the state’s open records law.

Many months and roadblocks later, Holladay-Hollifield faced a decision: File a costly lawsuit to get the information, or give up.

“This is supposed to be easy to access,” she said. “I’ve got three kids; I’m taking care of my mother-in-law and my husband. I mean, I don’t have a spare $10,000.”

Holladay-Hollifield’s predicament represents what experts say is a fundamental breakdown of American democracy: the fact that, in most states, the most effective — and often only — option for residents to resolve open government disputes is to sue.

“Unfortunately, in the United States, almost everywhere, you have to go to court to enforce these laws. And that’s just wrong,” said David Cuillier, director of the Joseph L. Brechner Freedom of Information Project at the University of Florida. “If the system requires the average person to hire an attorney to make democracy work, then it’s really broken.”

A nationwide review of procedures by The Associated Press and CNHI News, timed to Sunshine Week, found that fewer than a third of states have offices that can resolve residents’ complaints by forcing agencies to turn over documents or comply with open meetings requirements.

In most states, residents have just one meaningful option when they believe an agency is illegally withholding information, and that is to wage a legal battle. This system has a chilling effect, discouraging private citizens from finding out about everything from police investigations to how elected officials make decisions and spend taxpayer money.

Alabama is one of these states.

Holladay-Hollifield began seeking records from Huntsville Hospital, which is overseen by the Health Care Authority of the City of Huntsville, a public corporation, in early 2023. She petitioned its governing board, where an attorney repeatedly rebuffed her request. She then contacted numerous public officials, but none could help.

Finally she consulted a lawyer, who told her a lawsuit would likely cost thousands of dollars.

Joe Campbell, general counsel for the Huntsville Hospital system, said the facility’s administration and board have tried to provide Holladay-Hollifield with appropriate responses without "compromising their fiduciary obligations to protect the hospital.”

“We have notified her in writing that we contend executive salaries are confidential and not subject to an open record request,” Campbell said in an email.

However, J. Evans Bailey, a media law attorney in Montgomery, says significant Alabama Supreme Court rulings have held that health care authorities in the state are subject to its public records law.

“If you are subject to the open records law, and you have a document that shows what the salaries are of various executives or higher level people in your government entity, that should be an open record,” Bailey said.

The AP and CNHI’s 50-state review revealed a patchwork of complicated systems for resolving open government disputes. Some states, like Arizona and Indiana, have offices that can review complaints but can’t force agencies to comply with their findings.

More

Mark C. Mahoney, Editorial Page Editor,

The Daily Gazette

We have to fight for our right to transparent government

It seems like a fairly easy proposition.

Government belongs to us.

We elect government officials, who then appoint and hire other people in government.

Many of us make our living by working government jobs. Government provides us with many vital services, from roads and bridges to social services to environmental protections to law enforcement to dog licenses.

And we pay for every dime of government through property taxes, income taxes, sales taxes, other types of taxes, fees and fines.

You’d think with all our investment and all our engagement, we citizens would have unfettered access to everything government does.

Full access to information about where our tax money is being spent, what actions our government is taking and what deals they’re making allegedly on our behalf, who our government officials are talking to about government business, what disciplinary action is being taken against government employees, who exactly is supporting government officials through political contributions.

You’d think with everything we invest in government and with all we have at stake, our government officials would fling open the doors and let us all see what’s going on inside.

You’d think that. And you’d be wrong.

Instead, government is wrapped up in a cloak of darkness – protected by bureaucracies created by the very government officials we put into office – that in many circumstances prevents the public from knowing what that government and the people in it are doing.

In the darkness of secrecy, elected officials are able to conduct business that benefits themselves, their friends and family, their business associates and their campaign contributors.

They’re able to hide information about their governing that if revealed would hurt their chances at re-election.

They hide in the darkness to cover up their mistakes and bad decisions, their crimes, their conflicts of interest and their true motivations.

Not every government official is hiding something. Most aren’t.

In fact, there are public officials who are on the same side as the citizens, fighting from within for a more open government and transparency.

But in every facet of government, there is someone doing something that they don’t want the public to know about. In some cases, that’s led to decisions that have cost citizens considerable amounts of money, deprived them of their rights, threatened their health and even contributed to deaths.

We the people shouldn’t have to fight for every scrap of information from the government that we established, from the people we put in office, and with the dollars we pay into it from our own wages.

Transparency should be a fundamental characteristic of government, not an obstacle placed in our way to be overcome.

You think we’re angry? You’re damn right we are.

And you should be too. We all should.

To remind citizens about the threat of government secrecy and the obligations we have as citizens to fight for transparency, the media has created Sunshine Week.

It’s an opportunity for those of us with a public platform — journalists, public interest groups and others — to alert, alarm and educate the citizens about the challenges put up by government and about efforts to shine light on government action.

During the next week, we’ll provide examples of the efforts being made to keep government secret and to make government more transparent.

We’ll feature efforts by groups like the New York Coalition for Open Government, Reinvent Albany, NYPIRG, The League of Women Voters and others to fight for open government.

We’ll tell you about pending legislation on both sides of the issue.

And we’ll help educate you about the state’s transparency laws and give you specific information on how you can help yourselves obtain records and other information.

It’s your government. It’s your right to know.

Don’t you forget it.

And don’t you let the government forget it either.