Albany Law Event Highlights FOIL Opportunities

November 18, 2014

Albany Law School recently hosted FOIL at 40: Looking Back, Looking Forward, a discussion about the New York State Freedom of Information Law and its origin, implementation, and future. The five-member panel was moderated by The Capitol Pressroom’s Susan Arbetter, and included:

  • Tim Hoefer, Empire Center
  • Peter Henner, Committee Member, NYCLU
  • Camille Jobin-Davis, NYS Committee on Open Government, Department of State
  • Brendan Lyons, Albany Times Union
  • Jeffrey Pearlman, Chief of Staff, Senate Democratic Conference, NY State Senate

The panelists discussed FOIL and related issues, such as open data and records retention policies. Both Brendan Lyons and Tim Hoefer had plenty of war stories about FOIL requests turning into years-long lawsuits, or the maddening inconsistencies between agencies. For example, one of the Albany Times-Union’s FOIL requests to the Department of Health for a contract took over a year, and whole pages of the released contract were redacted. A subsequent FOIL to the State Comptroller for the same contract took mere weeks and was hardly redacted.

After listening to other panelists mention costly FOIL litigation, for which FOILers pay tens of thousands of dollars, Empire Center’s Tim Hoefer put it bluntly: “if you have to bring a lawsuit for a FOIL request, that’s a failure.”

The discussion briefly touched on the Cuomo administration’s practice of requiring agencies to refer all but the most routine FOIL requests to the executive chamber. Lyons called the practice “extraordinary,” and described FOIL requests which could be fulfilled in a day taking months or even a year because of this referral process.

The practice of agencies providing unlimited extensions of the deadline for responding to FOIL requests also came up. Camille Jobin-Davis noted that while agencies can provide their own “reasonable” deadline based on the complexity of the FOIL request and the total volume of all requests at that agency, agencies cannot give themselves endless extensions.

The other panelists noted that many agencies still give themselves endless extensions, and Lyons noted that the Albany Times-Union doesn’t sue on unnecessary delay because “you usually don’t get your money back.” Panelist Peter Henner said that compliance with deadlines (and appeals) is on the honor system, and Article 78 lawsuits take even longer. By way of an example, the Empire Center spent four years litigating the release of state pension records, and was awarded just $500 in court costs.

We hope to see more oversight and accountability brought to the FOIL process, so agencies aren’t put on the honor system. The endless extensions of self-imposed deadline, the wildly disparate application of FOIL exemptions, and the slow pace of responses undermines public confidence in the FOIL process.