LoHud.com (N.Y.): ‘Incredible year’ for public-access laws in N.Y.

From (N.Y.) LoHud.com (12/29/08): By all accounts, 2008 was a banner year for advocates of expanding access to public records and meetings.

Amendments to state law require that agencies provide records in the medium requested, such as compact disc, and mandatory awards of attorney’s fees for violations of the Open Meetings Law.

“We had an incredible year. We’ve seen positive amendments to FOIL (Freedom of Information Law) or the Open Meetings Law (in) the last three sessions,” said Robert Freeman, executive director of the state Committee on Open Government.

“We’ve seen amendments that are now law that I never dreamed would pass,” he said.

But New York’s more than 30-year-old FOIL and Open Meetings Law are not perfect, according to the Committee on Open Government. In a new report, the committee proposes changes that include requiring that certain records automatically be posted online, mandating that records discussed at open meetings be available before or at meetings, and limiting the open-meetings exemption for political caucuses.

The committee is asking lawmakers and Gov. David Paterson to require that agencies, when they can do so without undue burden, post on their Web sites meeting minutes, audits and other information that is “clearly public and frequently requested,” Freeman said.

Doing so would reduce the number of FOIL requests and the amount of staff time to evaluate them, copy records, calculate payments and keep logs, he said.

Beyond that, the committee recommends that government entities be required to make records available before or at a public meeting where they are discussed. The Legislature passed a bill this year, but Paterson vetoed it on the grounds that it could overburden agencies. The committee has rewritten its proposal to include a caveat that this should be done “to the extent practicable.”

Not having access to documents can be frustrating for the public, Freeman said.

“You’re sitting there and you have no idea what they’re talking about in the front of the room because you have no access to the records,” he said.

Susan Lerner, executive director of Common Cause New York, agreed. On the Los Angeles City Council’s Web site, she said, agendas are posted early and viewers can click on links to access supporting documents.

“We’re supposed to be an information leader, and in the private sector we are,” she said of New York. “It’s past time for the public sector in New York to catch up.”

Providing the records is the only way that people are going to have confidence in government, said Assemblywoman Amy Paulin, D-Scarsdale.

Objections can be raised when there are large volumes of material, Paulin said. In most cases, however, it’s just a few sheets of paper. For large documents, members of the audience could share, she said.

Paulin and Sen. Stephen Saland, R-Poughkeepsie, have sponsored legislation on the mandatory attorney’s fees and costs awarded when a person successfully sues for an Open Meetings Law violation. The judge has to grant the award when secrecy is the issue in the lawsuit, not compliance with other aspects of the law. The legislation took effect in August.

The Committee on Open Government wants that provision to extend to violations of FOIL, along with a requirement that appeals be expedited in FOIL litigation, similar to what is done with election lawsuits. Currently, judges have discretion in ordering costs and fees.

Mounting a lawsuit involves a lot of time and money, and anything less than a guarantee of money for winning could be a deterrent, the committee’s report said.

Appeals can take months, Freeman said. Fast tracking is necessary because “access delayed is access denied,” he said.

In the 2008 legislative session, Paulin sponsored successful legislation that requires agencies to design future computer systems so public and nonpublic information can easily be separated. That reduces the likelihood that entire records could be held back because some of the information was private.

Other amendments to the FOIL and Open Meetings Law that were passed this year do the following:

– Bar agencies from denying records on the basis that a new record would have to be created (an exemption to FOIL) if getting the information involves programming to retrieve and transfer records to the medium requested.

– Mandate that agencies provide annually updated subject-matter lists of records they maintain.

– Permit agencies to charge fees based on the cost of the storage medium used for records and the hourly salary of the lowest-paid employee who has the skill needed to fulfill the request when at least two hours would be needed. When the agency does not have the necessary equipment, it can charge the actual cost of hiring an outside business to do that.