Legislative Memo: Regarding Amending the Freedom of Information Law to Expedite Appeals Process

May 21, 2015

S.1531 (Ranzenhofer) / A.114 (Buchwald)

Position: SUPPORT

The New York State Freedom of Information Law (FOIL)¹ has been developed over the past forty years to provide public access to government records, in the interests of transparency and public accountability. However, when state agencies improperly deny record requests, or effectively deny such requests by failing to respond, government accountability is diminished.

Unfortunately, under current law, this is precisely what has occurred. A state agency’s denial of a FOIL request may be overturned by a court – but the agency may then file a notice of appeal, taking as long as nine months to perfect the appeal. During this period, the agency may withhold the records requested.

This legislation — S.1531/A.114 – would amend the FOIL to expedite the appeals process. The bill would require that upon a court order directing a state agency to make records publicly available, the government must file a notice of appeal within thirty days, and then complete the filing of its appeal papers within two months. If not completed within that time frame, the appeal by the state agency would be deemed abandoned.

The bill has been proposed by the New York Department of State’s Committee on Open Government.² The New York Civil Liberties Union urges passage of S.1531/A114.

Allowing the state protracted delays in responding to records requests subverts the intent of the FOIL. The government is able to withhold information regarding pressing issues of public policy. And this has the effect of dissuading members of the public from exercising the right to obtain such information.

The proposed amendments to the FOIL would help to ensure that once members of the public receive favorable rulings on records requests, the state’s appeals of those decisions will be resolved quickly and fairly. What’s more, the amended law would discourage state agencies from engaging in formal or informal administrative practices that result in routine denial of requests brought under the FOIL. Such practices are facilitated by the extended time frame for appeal.

Extensive delays in resolving requests for public records are a significant hindrance to the important transparency and accountability functions of the state’s Freedom of Information Law. This bill is a necessary, and appropriate, antidote — S.1531/A.114 would reduce the frustration and costs associated with lengthy appeals; the proposed amendments to the law are consistent with, and would uphold, the intent of the FOIL.

For the foregoing reasons, the New York Civil Liberties Union strongly supports passage of S.1531/A.114.

1 Codified at N.Y. Public Officers Law §§ 87-90.

2 N.Y. Dep’t of State, Comm. on Open Gov’t, Annual Report to the Governor and State Legislature (Dec. 2014) at 10-11, available at http://www.dos.ny.gov/coog/pdfs/2014AnnualReport.pdf.