The New York State Legislature created the Committee on Open Government (CoOG) in 1974 to provide advisory opinions and develop regulations for compliance with the newly ratified Freedom of Information Law, or FOIL. Every year, CoOG issues an annual report with proposals for improving access to public meetings and records in the State of New York.
The 2022 Annual Report is a plea for fundamental change of the system overseen by CoOG. The report notes that “the current structure of administrative oversight of FOIL compliance does not promote the prompt and efficient disposition of such disputes.” This is because state laws for records requests made with local governments are not enforced by any state agency. Instead, those who make records requests must spend hundreds or thousands of dollars suing local governments to compel compliance. CoOG’s report puts it thus: “The current statutory construct for appeal and enforcement places an expensive and time-consuming burden on private citizens seeking redress for perceived violations of the open government statutes.”
The report points to other states which fund offices to enforce freedom of information laws and to two bills in the New York State Legislature which seek to improve outcomes and timeliness for records requests.
The report asks the New York State Legislature to clarify the intent of its repeal of Civil Rights Law section 50-a (which had prohibited disclosure of police disciplinary records), since the current body of case law is inconsistent on whether the repeal applies retroactively and whether disclosure of pending or unsubstantiated complaints is now required.
CoOG also advises on the compliance of public bodies with New York State’s Open Meetings Law, or OML. The 2022 Annual Report comments on the ambiguity of whether OML applies to advisory bodies. Historically it has applied, but the text of a 2021 amendment suggests it does not, despite that the Legislature’s memo that accompanies the amendment stresses that it does.
The report notes “no court has yet interpreted whether this change in the law now excludes from coverage by the OML all advisory bodies,” but I am sad to report that the Erie County Supreme Court decided in December 2022 that the City of Buffalo’s Citizens Advisory Committee on Reapportionment is not a “public body” as described in the amendment and therefore is not subject to the OML. The full docket for this case is available here.
Finally, the report calls attention to a bill that seeks to require public meetings be livestreamed, and it raises the alarm that the OML amendment allowing videoconferencing for public meetings will expire January 1, 2024, unless renewed. The recommendations of the report are worthy of serious consideration. I urge our state legislators to take action, and I encourage members of the public to contact their state legislators and demand that action.