In Letter to Legislature, Groups Express Concern Over Governor’s Art. VII Changes to FOIL: Attorneys’ Fees, Critical Infrastructure

March 11, 2016

Dear Majority Leader Flanagan and Speaker Heastie:

We write today to urge you to use your one house budget bills to either substantially improve or reject two proposed changes to the Freedom of Information Law contained in Governor Cuomo’s Article VII budget bills.

After careful analysis, we have concluded that two of these changes are significant steps backwards for the state’s key “sunshine” law. They would reduce the transparency of our state and local governments. Accordingly and regrettably, our groups cannot support the governor’s FOIL reform package as drafted.

Governor Cuomo’s Article VII bill weakens FOIL by:

  • Making it harder for the public to get attorneys’ fees in FOIL cases in which they clearly prevail and an agency acted unreasonably. This is by far the most important of the seven proposed changes to FOIL. Unfortunately, we believe this will significantly weaken FOIL by creating a complex new mechanism and introduces to FOIL a legal test used to award punitive damages, which puts an extraordinary burden on the FOILer to show an agency “clearly disregarded” the law. It also eliminates a judge’s discretion to award fees to a FOILer who wins a case when an agency had “no reasonable basis” for refusing to disclose a record.
  • Creating a new exception for “Critical Infrastructure.” FOIL already allows agencies to withhold records when disclosure could endanger the life or safety of any person. Transparency groups have repeatedly opposed similar standalone bills, believing they will be used by agencies as an excuse to withhold records they find embarrassing or inconvenient. We know of no cases in which a judge has ordered an agency to release records that would endanger critical infrastructure. We recommend this provision be rejected.

Sincerely,

Peter Henner, Counselor
Alliance for Environmental Renewal

Susan Lerner, Executive Director
Common Cause – NY

Peter Iwanowicz, Executive Director
Environmental Advocates of NY

Dare Thompson, President
League of Women Voters – NYS

Seymour W. James, Attorney-in-Chief
Legal Aid Society

Mal Leary, President
National Freedom of Information Coalition

Robert Perry, Legislative Director
New York Civil Liberties Union

McGregor Smyth, Executive Director
NY Lawyers for the Public Interest

Blair Horner, Executive Director
NY Public Interest Research Group

John Kaehny, Executive Director
Reinvent Albany

Todd Ommen, Supervising Attorney
Pace Environmental Law Clinic

Veronica Vanterpool, Executive Director
Tri-State Transportation Campaign

cc:

  • Senator Jeff Klein, Leader Independent Democratic Conference Letter
  • Senator Andrea Stewart-Cousins, Minority Leader
  • Assemblymember Brian Kolb, Minority Leader
  • Senator John Bonacic, Chair Senate Judiciary Committee
  • Assembly Member Helene Weinstein, Chair Assembly Judiciary Committee
  • Senator Andrew Lanza, Chair Senate Investigations and Government Operations
  • Assembly Member Crystal Peoples-Stokes, Chair Assembly Governmental Operations
  • FOIL stakeholder groups