Groups Urge Governor Cuomo to Sign FOIL-strengthening Bills

Applause for Brennan Center Lawsuit Challenging LLC Loophole

The Brennan Center for Justice has just sued the New York State Board of Elections, asking a state court to rule that the Board must close the “LLC Loophole,” which allows huge amounts of untraceable political donations to be funneled through LLCs. The Board of Elections opened the loophole in 1996 when it ruled that LLCs are not corporations, and are therefore not subject to the $5,000 limit on political contributions like corporations are. The Brennan Center sent a public request in April to the Board of Elections to rescind its opinion about LLCs:

Under that Opinion, LLCs (limited liability companies) are treated as individuals rather than “corporations” or “partnerships” under the Election Law, entitling LLCs to a contribution limit that is more than eight times the corporate limit in statewide races, far higher than what the Legislature intended for artificial business entities. Moreover, the Board has permitted individuals who control multiple LLCs to use them to evade contribution limits entirely.

In one of the starkest examples, one wealthy contributor used 27 LLCs to contribute at least $4.3 million to political committees in the state over the past two years.3 The prevalence of such conduct is impossible to fully ascertain, because LLCs need not disclose the identities of their members or officers in their corporate filings.

We applaud the Brennan Center’s lawsuit, and hope to see the LLC Loophole closed as soon as possible.

New Federal Policy Makes FOIA Responses Available to All

Federal agencies are starting to use the Freedom of Information Act to increase access to public records by putting each response to a FOIA request online. Currently, the E-FOIA amendments of 1996 require agencies to put records online which have been the subject of repeated (read: three) requests. The Reporters Committee for Freedom of the Press notes:

With little public fanfare, seven federal agencies have announced a controversial trial program of publishing documents responsive to most Freedom of Information Act requests online. Under the program, known as a “Release-to-One is Release-to-All” policy, any member of the public will presumably have access to the result of almost any FOIA request.

Few other details were released in a brief announcement posted on several agency websites. It remains to be seen whether there will be a delay between sending responsive documents to the requester and posting them for the general public, or whether requesters will simply be sent a link to a public website that already hosts the documents.

Agencies participating in the six-month pilot include the Environmental Protection Agency, the Office of the Director of National Intelligence, the Millennium Challenge Corporation, and certain components of the Department of Defense, the Department of Homeland Security, the Department of Justice, and the National Archives and Records Administration.

This is a great move for two reasons. First, it improves access to public records. Second, it saves FOIA officers the time of responding to the same request over and over; this, in turn, improves response times for other FOIA requests. Alex Howard interviewed Melanie Pustay, the director of the Office of Information Policy at the Department of Justice about the new policy.

In the past, Reinvent Albany has advocated for a similar response to FOIL requests. We call it “One Strike and You’re In” – if an agency receives a request for a single record from a data set, the entire data set should be published in a bulk-downloadable, machine-readable format. The Sunlight Foundation included this recommendation in its open data best practices.

Strictly speaking, “Release-to-One is Release-to-All” won’t put data sets online, just the individual pieces that get FOIAed. However, this is still a vast improvement over the current state of affairs, and should be adopted across New York agencies.