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Governor’s approval of FOIL attorneys’ fee law bolsters transparency and is biggest advance for FOIL in many years
“Thank you Governor Cuomo, Assemblymember Paulin and Senator Gallivan, this new law is a real advance for state and local government transparency in New York. This shows us that Albany can move forward and can make government more accountable to the public,” said John Kaehny, Executive Director of watchdog group Reinvent Albany, which led a two year campaign for the bill.
Reinvent Albany thanks the fourteen newspaper editorial boards, twenty prominent New York and national transparency groups, and thirty-three media outlets that urged Governor Cuomo to sign the bill. The law makes it easier for the public to win attorneys’ fees when they have won a court order instructing agencies to release public records.
The legislation, A.2750-A (Paulin) /S.2392-A (Gallivan), passed the legislature overwhelmingly earlier this year. A Reinvent Albany analysis of FOIL court cases spanning over a decade found that judges do not award attorneys’ fees in nearly 1/4th of cases in which the public wins the release of public records. The reluctance of some judges to award attorneys’ fees even when ordering an agency to release records discourages the public from enforcing the Freedom of Information Law in court.
Twenty Prominent New York and National Transparency Groups Call on Governor Cuomo to Strengthen Freedom of Information Law by Signing Attorneys’ Fees Bill
SEE MEMO AT BOTTOM
Twenty prominent New York and national transparency groups are publicly calling on Governor Cuomo to sign a bill that strengthens the Freedom of Information Law. The bill makes it easier for the public to win attorneys’ fees when they have won a court order instructing agencies to release public records.
The legislation, A.2750-A (Paulin) /S.2392-A (Gallivan), passed the legislature overwhelmingly earlier this year and is headed to the Governor’s desk for his consideration.
This bill amends the NYS Freedom of Information Law to require the mandatory awarding of attorneys’ fees to plaintiffs when the plaintiff substantially prevails on the record request and a court finds that an agency had no reasonable basis for denying access to public records. Under current law, plaintiffs who do pursue records in court can seek attorneys’ fees but they are awarded at the judge’s discretion. To get their legal bills paid, the person seeking public records has to “substantially prevail” in getting the records released, and show the agency has “no reasonable basis” for denying the records. The bill continues to allow judges to use their discretion in awarding attorneys’ fees in cases where agencies fail to meet deadlines for complying with FOIL.
A similar attorneys’ fees bill, A.1438-B (Paulin)/S.533-B (Gallivan), was vetoed by the Governor in 2015. The legislation being delivered to the Governor this year seeks to address the issues raised by the Governor’s veto in 2015.
BetaNYC · Brennan Center at NYU Law · Citizens Union · Civic Hall · Common Cause NY · Consumers Union · First Amendment Coalition · Just Leadership USA · League of Women Voters of NYS · New York Press Club · Tri-State Transportation Campaign · National Freedom of Information Coalition · New York Civil Liberties Union · NYPIRG · Pace Environmental Litigation Clinic · Reinvent Albany · Represent.us · Riverkeeper · Sunlight Foundation · Tully Center for Free Speech
Memorandum of Support
A.2750A-2017 (Paulin) S.2392A-2017 (Gallivan)
Awarding attorneys’ fees in FOIL lawsuits
An act to amend the public officers law, in relation to freedom of information requests and attorneys’ fees.
This bill amends the New York State Freedom of Information Law to require the mandatory award of attorneys’ fees to a plaintiff when the plaintiff substantially prevails on the record request and a court finds that an agency had no reasonable basis for denying access to public records.
Statement of Support
New York’s Freedom of Information Law is the single most important transparency tool the public has. Unfortunately, it is common for government agencies in New York to deny FOIL requests. Agencies are able to violate the Freedom of Information Law because they know it is prohibitively expensive for the public to go to court to order the release of public records.
Even when the public wins a record request and proves in court that an agency had no reasonable basis for denying access to public records, a judge may or may not decide to award attorneys’ fees. This means the public risks significant legal costs, even when they win a FOIL case. The high legal cost and the likelihood of not recovering fees means only a very small share of the FOILing public ever seeks to enforce FOIL via the courts.
This bill corrects this problem, and guarantees attorneys’ fees to petitioners who at trial substantially prevail on their records request and prove that an agency unreasonably denied access to public records. It also continues to allow judges to use their discretion in awarding attorneys’ fees in cases where agencies fail to meet statutory deadlines.
We strongly support A.2750A-2017/S.2392A-2017, and urge Governor Cuomo sign it into law.
Reinvent Albany was proud to join lead sponsors Citizens Union and NY Law School, co-sponsors League of Women Voters NYC and NYPIRG, and a sell-out crowd on November 20th where we heard all of the candidates vying to be Speaker of the New York City Council discuss their priorities, proposals and vision for New York City.
Reinvent Albany today praised four laws which go into effect today making billions of dollars in City spending more transparent to the public. The Council passed the laws on October 31st. The Mayor did not sign the bills but allowed 30 days to lapse since Council passage, making the bills law under the City Charter. Reinvent Albany testified in favor of the legislation at a mayoral hearing on November 20th and previously at Council hearings held this past June and in December 2016.
“These new City laws will make it much easier to understand both the big picture of how the City is spending money and the specifics of hundreds of millions of dollars in subsidy deals the City makes with businesses. It will be much easier to see if the taxpayer is getting a good deal. These new laws are a blueprint for what the state should do,” Said John Kaehny, executive director of Reinvent Albany.
Int. No. 1176-A (Kallos) requires the Office of Management and Budget to put the City budget online in an open data format. This will make it much easier to analyze mountains of budget numbers. Reinvent Albany was the lead advocate in advancing Local Law 11 of 2012 which created the Open Data Portal in New York City, and was instrumental in the creation of the State’s Open Data portal created via Executive Order 95.
Int. 1337-A (Rosenthal), requires the Economic Development Corporation (EDC) to provide extensive information about taxpayer subsidy deals including:
The project’s name, location and time period during which it is receiving financial assistance;
projected and actual jobs created;
the different types of jobs including full-time or part-time, permanent or temporary, and contractual;
the type of financial incentives including grants, loans, tax expenditures, tax abatements, energy benefits, and waived fees;
Past, present year, and present value of project benefits;
a disaggregation of jobs within each industry at the job site and whether employees are earning a living wage or receiving health benefits;
A statement of compliance related to project targets and goals and any clawbacks, reductions or cancellations in benefits.
Reinvent Albany has pursued similar legislation in NYS known as a Database of Deals which would provide all economic benefits received for individual projects. Councilmember Rosenthal’s bill serves as a model for Albany.
Int. No. 1316-A (Garodnick) is a companion bill to the Rosenthal bill and Reinvent Albany testified in support of it. It requires a fiscal impact statement be provided to the Council Speaker 30 days before benefits commence for an economic development project. The fiscal impact statement provides the impact on the city’s revenues and expenditures for the fiscal year in which the benefit begins, the next year, and the first fiscal year in which the impact of the project is fully realized along with its job creation estimates.
Int. 1322-A (Johnson) requires the City’s economic development agencies to report on their websites when contractors fail to meet their material obligations to the city, and any actions taken by the economic development agency to recoup taxpayer funds when a default has occurred. Reinvent Albany testified in favor of this bill in December 2016.
Watchdog group Reinvent Albany praised today’s City Council votes in favor of bills that improve the Open Data Law and create a portal for city residents to register to vote online. All of the bills are expected to be signed by the mayor.
“Today, we’re congratulating the City Council on two civic technology wins. The Council continues to be a global leader on open data and these two bills will make it much easier to track how well agencies are publishing their data for public use and help get data that’s already been released via Freedom of Information (FOIL) request online. The bill facilitating online voter registration reduces barriers to voting and pushes the Board of Elections to adopt a commonsense convenience that voters elsewhere already have. Special thanks to council members Jimmy Vacca for his tremendous record championing open data as the outgoing chair of the council Technology Committee and Ben Kallos for his leadership on voting issues as chair of the Government Operations Committee.”
Said John Kaehny of Reinvent Albany, a watchdog group that advocates for using technology to improve government.
Int. No. 1707-2017 (Vacca) upgrades the NYC Open Data Law and most importantly requires the City to publish on the Open Data Portal information the status of data sets and makes it much easier for the public to track how well the City is complying with the Open Data Law.
1528-A-2017 (Vacca) requires agencies to list the names of data sets that have been requested via FOIL request. This will make it much easier for the public and the City to understand what data the public is requesting and should be published as open data.
Int. No. 508-2014 (Kallos) requires the NYC Campaign Finance Board (CFB) create a portal within 18 months to enable New Yorkers to register to vote electronically. The CFB will deliver digitally signed voter registration forms to the City Board of Elections for processing. Reinvent Albany believes government should use technology to improve service delivery and engage New Yorkers, and therefore supports this legislation. We further believe digital signatures are the legal equivalent to handwritten signatures and the Board of Elections should process digitally signed forms.
Reinvent Albany testified today before the State Assembly Committee on Economic Development. The gist of our testimony was that the legislature should not appropriate any new funds for discretionary economic development programs until there are major transparency and accountability reforms, including a Database of Deals, Clean Contracting reforms and restrictions on campaign contributions from state vendors. (“Pay to play” controls.) In January and June of 2018, nine of the governor’s top aides and campaign contributors will go on trial for allegedly rigging over a billion dollars in state economic development contracts.
Should New York State taxpayers be happy about building Norsk Titanium a $125m headquarters and factory in Plattsburgh in return for Norsk creating “383 direct and indirect high-tech jobs over the first five years? ” Plattsburgh is a small city of 20,000 people about 315 miles north of New York City near the Canadian border, and is the county seat of Clinton County, population 80,000. Plattsburgh’s median household income in 2014 was $34,460 a year, far below the state household income of about $58,000. The median salary for Plattsburgh public school teachers is $64,000 a year. In 2017, Plattsburgh’s government, and related entities, had a budget of $54m. Plattsburgh needs help. But is spending $125m in state funds to build Norsk Titanium a new HQ and factory the best way to provide that help? And, what happens if Norsk Titanium walks away in ten years, or five? How about putting the Norsk deal online where the public can see the terms?
Reinvent Albany testified at today’s hearing of the MTA Bridges and Tunnels Committee. We asked whether the MTA board met its fiduciary duty when it approved spending for the building and installation of decorative Gateway Towers without a budget for the towers. As of today, the towers, which are stainless steel pylons installed at the entrances to all nine MTA bridges and tunnels, have already cost $47m.
Reinvent Albany testified at today’s hearing on improvements to the NYC Open Data Law. Highlights of our testimony include calling for new language that clarifies that the Open Data Law is permanent and does not expire in 2018. We also called for the creation of a “Status of All Public Data Sets” listing of the status of all public datasets, which include when they will be published and whether they are complying with new requirements for data dictionaries, and standardized addresses.