Oct. 18, 2019
By JUDY PATRICK
VP for editorial development
New York Press Association
SYRACUSE – John Lammers spoke bluntly when he talked about New York’s Freedom of Information Law. “Fundamentally broken,” he said, sizing it up. And, he added, “it’s getting worse every day.”
Lammers, senior director of content for Advance Media New York, was among the panelists Oct. 16 as the New York State Bar Association Task Force on Free Expression in the Digital Age held a public forum on the access law at Syracuse University College of Law.
The task force was created earlier this year to see what the law and lawyers can do to the stem the crisis in local journalism, said Cynthia Arato, task force co-chair and a lawyer with Shapiro Arato Bach LLP. FOIL is just one of the areas the group will address through a series of events scheduled to conclude next spring.
From major overhauls to minor revisions, lawyers, journalists and open government advocates used the FOIL forum to suggest ways the existing system could be changed to improve the public’s access to information.
Some called for revisions that would clarify the existing law and expedite a process that can now drag on for months.
“I wouldn’t say [FOIL] is broken,” Mike Grygiel, a lawyer with Greenberg Traurig who specializes in open government litigation. “But it really isn’t operating the way it was intended.”
The law’s existing procedures are unwieldy and unclear, he said. While the statute requires a government agency to acknowledge receipt of a FOIL request within five working days, for example, there is no timetable for actually receiving the information. That can lead to repeated delays that can stretch for months, delays especially problematic for journalists working on time-sensitive stories.
Court challenges provide a recourse to delays and rejections, but that option is often too expensive for newspapers struggling to sustain a workforce. “It’s very difficult for [newspapers] to decide to commit to litigation when the cost can be more than the cost of a reporter’s annual salary,” Grygiel said.
Amendments to the law this year make it easier for papers to recoup legal costs if they win FOIL challenges but Grygiel noted that that kind of reimbursement almost never happens.
Jeremy Boyer, executive editor of the Auburn Citizen, said some government entities are well aware that financial limitations lessen the likelihood of a court challenge. “It’s like they’re daring us to spend money on lawyers,” he said.
Both Kristin O’Neill, assistant director of the state’s Committee on Open Government, and Kathryn Sheingold, who handles FOIL appeals in the Attorney General’s office, said the government’s public information officers are making good faith efforts to fulfill requests. The problem, O’Neill noted, is sometimes a matter of time for overwhelmed staff.
One suggested way to reduce that workload is to have more information readily available, bypassing the need to follow the formal FOIL process. Posting records such as meeting minutes and policy manuals online would reduce the number of formal requests officers would have to deal with, freeing up time to deal with other requests. But that kind of pro-active disclosure carries costs as well, O’Neill noted.
Reliable public access to important government information faces more expansive challenges. Governments, for example, are increasingly contracting with private companies for essential public services such as medical care in jails, leaving public access issues unresolved. And Lammers said there’s an increasing trend by judges to seal details of court settlements involving governmental entities, putting information the public has a right to know out of its reach.
Regular updates on the task force’s work, as well as recordings of its forums, are available at www.nysba.org.