When it comes to open government, New York’s lofty ideals bear little relation to reality

When it comes to improving government transparency and freedom of information — improvements that are urgently needed — politicians may talk a good game, but when it comes right down to it, the end result is the same. Nothing happens.

In theory, New York State laws protect the “public’s right to know.”

The state’s Open Meetings Law begins with a lofty “legislative declaration” that includes language about how “essential to the maintenance of a democratic society” it is for public business to be performed in “an open and public manner.”

“The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it.”

New York’s records access law, called the Freedom of Information Law. also begins with a lofty declaration that contains many admirable sentiments. Among them: “The people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.”

The declaration goes on to say, “The legislature therefore declares that government is the public’s business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article.”

Sounds good, right?

As always, the devil is in the details. And the details of these laws provide enough exceptions, gray areas, and squishy language to render these lofty statements downright ridiculous.

And when you factor in the complete lack of any penalties for violating these laws in New York — as well as the fact that no entity is empowered to enforce their provisions — plenty of public officials feel emboldened to tell the press and the public to basically “stuff it.”

The only way these laws get enforced is if members of the public or press bring an action in State Supreme Court to compel an agency to abide by the laws.

We believe the many public officials who behave as if these laws don’t apply to them are counting on the fact that members of the public and the press don’t have the resources to hire lawyers to sue them — or the time and energy needed to figure out how to bring a State Supreme Court action without a lawyer, something which still costs over $300 to accomplish even when one does not hire a lawyer.

They’re right about that. Who has the money and time to get involved in something like that? We don’t. The best we can do is call them out on it and hope they’re eventually embarrassed enough to reform themselves voluntarily.

Records access is more important now than ever, because public officials are less and less willing to have an open dialogue and to answer questions from a reporter. Some of them won’t consent to be interviewed — they require you to put your questions in writing and then email you a statement or answers to your questions that are often unresponsive to direct questions. Some will only have that even that shallow level of communication through a spokesperson or a public relations agency — people who are even more adept and not directly answering direct questions.

And then, when the spokesperson or PR firm emails you a “statement from” the official, they carp at you for identifying it as such in an article. A fair and accurate report must do so; there is no way to know who is actually authoring that written statement and we’re not going to pretend it came directly from the official we sought to ask. That’s dishonest.

The point of this kind of behavior is to control the narrative, presumably with the objective of making themselves look better. And apparently an open dialogue runs too many risks when there are things you’d rather not discuss.

In this environment, access to documents is that much more important now. Documents tend to tell the real story.

The Freedom of Information Law — known as FOIL — requires the agency that maintains the record sought to respond to the FOIL request within five business days and provide the documents requested, deny the request, or advise the person seeking the record of the approximate date the request will granted or denied.

Failure to respond within the five business days constitutes a denial, which allows the requester to appeal the denial to the agency’s designated FOIL appeals officer, who has 10 days to make a decision. (And then you can bring that lawsuit.)

We can provide lots of examples of how these laws are ignored by appointed and elected officials — but that’s not the point.

There are bills pending in Albany, including one sponsored by Assembly Member Fred Thiele of Sag Harbor, that would provide penalties for violations of the Open Meetings Law and Freedom of Information Law.

Thiele has sponsored the same or similar bills for four legislative sessions. Each time, the bill has died in committee — specifically the governmental operations committee. That’s where his most recent bill sits right now, undoubtedly in the process of meeting the same fate. The committee chairperson never even allows a vote on the bill.

A bill introduced by Assembly Member John McGowan of Rockland would impose criminal penalties for failure to comply with the Freedom of Information Law. That bill, too, is in the governmental operations committee.

The federal Freedom of Information Act and the laws of at least 14 other states already impose civil or criminal penalties for violations. Why not New York?

There is a better way

Another pending bill would direct the State’s Committee on Open Government to study “proactive disclosure” as a way to increase transparency and access to government information.

The justification section in the memo for the bill, introduced by Assembly Member Nily Rozic of Queens (who has sponsored this bill for five consecutive sessions) says:

“The goal of the original Freedom of information Law (FOIL) was to promote the public good by disclosing information as widely as possible and without impediment, but it has its limitations because of the burden that it places on the public to make requests for information. While some state and local records are already available electronically, this information has been made public in a haphazard and uncoordinated fashion.”

In other words, if a document is by definition a public record, agencies should make it available to the public online. The technology is there. Use it.

A little town like Southold manages to do this — and has been doing this for years. All of its records that are subject to disclosure are online. Citizens can view applications, maps, correspondence, environmental review documents and more online. No forms, no dance, no games.

I asked Southold Town Clerk Denis Noncarrow how much this platform costs the town. It’s about $30,000 a year, he said. The town must also have an employee to scan the documents and upload them to the town’s website, as well as the equipment to scan the documents.

The costs of web platform, and the costs of staff and equipment needed to use it, will be offset by the elimination of the cost of employee time reviewing requests, responding to them, making decisions on them and fulfilling them in piecemeal fashion.

It’s more efficient and certainly more transparent.

If New York is serious about open government — and there’s certainly plenty of justified doubt about that — it should mandate that governments at all levels operate in the 21st Century and use their websites to provide access to records the law already requires be made public.

It must also provide the open government laws with teeth in the form of penalties for violations.

Absent these measures, open government in New York will remain a lofty ideal and little more.