Commentary: Hochul can stand up for democracy by signing FOIL bill (Op-Ed)

Op-Ed originally posted in the Times Union
by Tom Speaker, Legislative Director

Democracy across America faces historic threats. We feel it here in New York and ask: What can our state’s elected leaders do in this time of crisis?

One thing they can do is show through their actions that they sincerely believe government is the people’s business. That means making New York’s government more accountable and transparent.

On this front, Gov. Kathy Hochul failed recently with her veto of an important FOIL bill that would have made it harder for New York government agencies to indefinitely delay their response to records requests. Fortunately, she has another chance to show she cares about transparency by signing a bill (S67/ A6613) that will help courts properly interpret the Freedom of Information Law.

Some judges in the First Department of the New York Appellate Division have been improperly interpreting FOIL by claiming that if a government agency can redact one part of a record, the agency is allowed to redact the entire record. This is a plainly absurd reading of FOIL, which states that “disclosure [of records] … shall not be construed to constitute an unwarranted invasion of privacy … when identifying details are deleted.” Other courts have affirmed in numerous decisions that agencies must still disclose partially redacted records.

If, despite all this, the governor still has any doubts, it should help that her own agency wrote the bill. In 2024, the state Committee on Open Government, housed under the executive branch, raised the alarm about the First Department’s misreading of the law in an advisory opinion. This led my organization, Reinvent Albany, to ask the committee to draft legislation to address the misreading, which COOG did in its 2024 report, leading to the legislation now awaiting Hochul’s signature.

Truthfully, this bill should not have to exist, as the law is already clear. But the First Department’s misreading of the law necessitated this legislation. The court’s errors were so glaring, in fact, that the Legislature, often slow to act on transparency bills, passed the bill within months of its being introduced.

This opportunity comes at a time when transparency is declining on the federal level. In August, the U.S. Department of Energy required federal requesters to “resubmit” prior requests to confirm that they were still seeking the information – a change that risked the closure of hundreds of requests. The Environmental Protection Agency said it will no longer require companies to report pollution data. And cuts to federal agencies have of course left compliance with the federal Freedom of Information Act in a meager state.

For leadership on transparency, Americans will have to look elsewhere. But under Hochul’s administration, improvements to FOIL have been sorely lacking. The only FOIL bill that Hochul signed last year was in fact a setback for FOIL in requiring agencies to notify public employees when their personnel records had been requested. And while many legislators have vocally pushed for improvements to the law, the governor has been completely absent — including not properly funding this basic public service in her budgets.

It’s never too late to change course. If Hochul wants to show New York is still a place where fundamental notions of government accountability and transparency matter, she must sign this bill.