Reinvent Albany Supports Two FOIL Bills Awaiting Governor’s Signature


Bills Will Speed Disclosure of Records Held Up by Legal Proceedings

Reinvent Albany submitted memos of support today for A.3939/S.5496 and S.4685-A/A.414-A to Governor Cuomo, urging him to sign the two FOIL-related bills that the legislature passed last session. The legislation will make it easier to obtain government records connected to court proceedings in New York State. The Governor will likely sign or veto the legislation by the end of the year.

A.3939(Englebright)/S.5496(Skoufis) will require agencies to notify the court if they receive a records request related to a legal proceeding. The judge will determine if release of the record will interfere with the case, after the requester has an opportunity to be heard.

Other portions of the bill also importantly clarify the presumption of access to records. Agencies must provide a specific justification when exempting a record from disclosure. The legislation also clarifies that a denial to a record under FOIL does not prevent a requester from obtaining the record through other laws, that a party to a civil or criminal action or proceeding may use FOIL to obtain records related to that proceeding, and that agencies may not exempt categories or types of records from disclosure.

A.414-A(Paulin)/S.4685-A(Skoufis) will expedite legal proceedings that often delay the release of records sought under FOIL. After a state agency decides to disclose records, companies have 15 days to initiate a proceeding to block the disclosure if they believe the information disclosed is a trade secret or will substantially harm their competitive position. As a result, the release of some records is delayed for years. Under this bill, courts will be required to bring on proceedings for arguments within 45 days, meaning that the cases will be resolved in a prompt manner rather than being delayed interminably. Cases will be deemed abandoned when a party neglects to provide a brief within sixty days.

Every year, hundreds of commercial enterprises enter in contracts with New York state that require certain trade secrets to be submitted to state agencies. The trade secrets, if released, can substantially harm a company’s competitive position, and companies have a right to seek the protection of those secrets. But extended proceedings can delay disclosure of information that is not a trade secret or will not cause substantial injury to the company’s competitive position. This information is valuable to the public’s understanding of how tax dollars are being spent.