OntheWilderSide

A version of this was published in my local weekly paper as a guest opinion piece from Robert Freeman, Director of the NYS Committee on Open Government.  It is from  REPORT TO THE GOVERNOR AND THE STATE LEGISLATURE 2005: ADDING STRENGTH AND GOOD SENSE TO OPEN GOVERNMENT LAWS

“Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or tragedy or perhaps both.”
                        – – James Madison, August 4, 1822

“Information is the currency of democracy.”
                        – – Unknown

“Do not be angry with me if I tell the truth.”
                         – – Socrates, c. 400 b.c.

FOIL SAVES MONEY!

            There is no doubt that there is a cost incurred by state and local government agencies when they must locate records, review them and make them available following requests made under the Freedom of Information Law (“FOIL”). But it is equally clear that disclosures by those agencies as a result of the use of FOIL save taxpayers millions of dollars — far more than the cost of implementing the law.

            To illustrate, in July, the New York Times published articles concerning fraud and abuse in the Medicaid program. In the first, it was reported that:

“Though the program is a vital resource for 4.2 million poor people who rely on it for their health care, a yearlong investigation by The Times found that the program has been misspending billions of dollars annually because of fraud, waste and profiteering. A computer analysis of several million records obtained under the state Freedom of Information Law revealed numerous indications of fraud and abuse that the state had never looked into” (July 18, 2005).

Just two days later, the Times wrote that:

“Gov. George E. Pataki yesterday ordered a broad overhaul of the state agencies that protect Medicaid from fraud and abuse, creating an independent inspector general’s office and bringing in a former federal prosecutor to help reorganize the policing of the program, which is New York State’s largest expense” (July 20, 2005).

     The designation of an inspector general coupled with better oversight of Medicaid by the agencies responsible for its implementation will result in less fraud and waste, and a significant savings to taxpayers. Just as important, when Medicaid providers know that the government is watching, they will be less likely to cheat. Disclosure, even the possibility of disclosure, will save taxpayers’ money. Assuming the moneys paid by Medicaid involving “fraud, waste and profiteering” run into the millions, the use of FOIL by the Times, the publication of its findings, and the remedial action taken by state agencies will save taxpayers millions and perhaps billions of dollars over the course of years.

            Another example of the use of FOIL to save taxpayers’ money involves the Albany Times-Union stories concerning the abuse of E-Z Pass. An editorial published on March 4 stated that:

“With the state scrambling to close a $4 billion budget gap, coming up with $3.4 million in uncollected E-ZPass Thruway tolls might seem like small potatoes. So, too, might the nearly $20 million in fines that Thruway Authority officials are owed by motorists.

“But to borrow from a famous saying by the late Sen. Everett Dirksen, a million here, a million there, and pretty soon it adds up to real money.”

Soon after the Times-Union articles appeared, the Thruway Authority announced that it had retained a collection agency to attempt to recover the money for uncollected tolls and the fines. Even if a quarter of the total is eventually collected, taxpayers will gain more than $5 million as a result of the use of the FOIL.

            Throughout New York, when state and local agencies solicit bids for the purchase of goods and services, and a potential bidder uses the FOIL to obtain the current contract involving the purchase of the same or similar items, that company can submit a new competitive bid for upcoming purchase based on its hope that it can offer the agency a better deal. When we consider the purchases by counties, cities, towns, villages, school districts and state agencies, taxpayers realize untold savings due to disclosures made pursuant to the FOIL that likely involve millions of dollars each year. To reiterate Senator Dirksen’s observation, pretty soon it adds up to real money.

           In short, FOIL saves money.

ADDING MEANING TO OPEN GOVERNMENT LAWS – – ADDING REAL TEETH

            FOIL has real value, as does its companion, the Open Meetings Law. In brief, the latter requires that meetings of public bodies be conducted in public, unless there is a basis for entry into an executive session. Both laws are based on a presumption of access, stating that all records and meetings must be open to the public, unless an exception to openness can properly be asserted.

            The Open Meetings Law provides a unique opportunity for the public to observe elected and key appointed officials and gain insight into the decision making process. Additionally, it offers a means of knowing where those officials stand on key issues and the potential to affect the course of government.

            Both FOIL and the Open Meetings Law include enforcement provisions. However, the teeth in those statutes are clearly baby teeth. While the Committee applauds the Governor and the State Legislature for strengthening the FOIL earlier this year by imposing more specific time limits upon agencies to grant access to records (Chapter 22, Laws of 2005), that legislation serves as an initial step in improving the law. The new provisions require that state and local government agencies do what we all must do in so many aspects of our lives and our work: they require that agencies abide by self-imposed deadlines. The amendments require that any delay in disclosing records beyond five business days must be reasonable in consideration of the circumstances relating to a request, such as the volume of the request, the difficulty in locating records, the need to review their content, etc.

STRENGTHENING FOIL

            We believe that the recent changes in FOIL are beneficial in enhancing its operation. Nevertheless, they clearly serve as only a first step. Our experience indicates that the new provisions aid in compliance in a timely manner, but there remain too many instances in which agencies unreasonably delay disclosure. When that occurs, those seeking records have few courses of action.

            The legal remedy for challenging an agency’s action or non-action involves the initiation of a lawsuit, a proceeding commenced under Article 78 of the Civil Practice Law and Rules. The problem is that initiating a lawsuit involves too much time and money to serve as a reasonable course of action for most people or entities seeking records under FOIL. Further, although there is a possibility that a court may award attorney’s fees to a member of the public challenging a denial of access, the likelihood of an award is remote. Under §89(4)(c), a court may award attorney’s when the person seeking records (1) has substantially prevailed; when (2) the court finds that the agency had no reasonable basis for withholding the record; and (3) the court determines that the records are of “clearly significant interest to the general public.”

            In numerous instances, records requested by a member of the public are of significance only to that person. When that is so, an agency can deny access or stonewall, knowing that there is no possibility that a penalty will be imposed, even when the person denied access has the desire and resources to go to court. A court, irrespective of the behavior of an agency or its failure to comply with law has no options, other than ordering the agency to disclose the records that it should have disclosed in the first place. It simply cannot order an award of attorney’s fees unless the records are of “clearly significant interest to the general public.” Even when there is such a finding, and even when each of the three conditions is met, a court has discretionary authority to award attorney’s fees; there is no guarantee that such an award will be made.

A Reasonable Remedy – Attorney’s Fees

            The Committee recognizes that severe sanctions, fines or jail time do not represent realistic means of attempting to improve compliance with open government laws. Having reviewed laws in other jurisdictions involving public access to records, in those states that have enacted provisions calling for stiff penalties, such as fines or criminal prosecution, courts rarely, if ever, impose them. The only mechanisms that appear to encourage compliance with law are provisions requiring responses to requests within prescribed time limits, a first step that has been accomplished, and those which enable the public to use the courts effectively by guaranteeing the award of attorney’s fees when agencies fail to respond in a timely fashion or deny access without any real justification.

            A decision rendered by the Court of Appeals on October 25, Beechwood Restorative Care Center v. Signor, highlights the need for a change in the law. In brief, Beechwood requested records from the State Department of Health, but its requests were largely ignored. Beechwood was essentially forced to initiate a judicial proceeding in an attempt to gain access to records, and the Department of Health disclosed records only after the lawsuit was initiated. As stated by the Court of Appeals:

“DOH’s failure to follow FOIL’s requirements necessitated this lawsuit, a result that could have been avoided had DOH discharged its statutorily-mandated disclosure obligations in a more thorough and timely fashion. DOH’s delay in conducting a comprehensive search for the requested records triggered the question whether Beechwood could recover attorney’s fees expended in this litigation.”

Despite the failure to give effect to FOIL, the Court of Appeals rejected the request for an award of attorney’s fees because it found that the records at issue were not of clearly significant interest to the general public. That is unequivocally expressed in the decision, for the Court stated that:

“…even assuming Beechwood met the other FOIL requirements – – it ‘substantially prevailed’ and DOH did not have a reasonable basis for withholding the records – – Beechwood’s claim for attorneys’ fees fails under FOIL.”

            Agencies should not be allowed to ignore requests made pursuant to FOIL or delay responding for so long a time that the accountability the law seeks to ensure is lost. They should not be allowed to just say no, perhaps without even reviewing the content of the records or considering the effects of disclosure. From our perspective, the time has come to propose the enactment of amendments to FOIL that will strongly encourage every unit of state and local government to make a good faith effort to comply.

            In the proposal that follows, a court would be required to award attorney’s fees (1) when the agency had no reasonable basis for denying access; (2) when an agency fails to respond to a request within the statutory time, the person denied access initiates a lawsuit due to the failure to respond and the resultant denial of access, and the person denied access substantially prevails; or (3) when an agency fails to respond to a request within the statutory time, the person denied access initiates a lawsuit, and the agency then discloses the records before any judicial decision is rendered. Although the initiation of a lawsuit may serve as the “catalyst” for disclosure, under the existing law, the award of attorney’s fees can be avoided because no judicial decision is rendered. To be fair, and to discourage agencies from ignoring requests or delaying disclosure unreasonably, a person who expends effort and money initiating a judicial proceeding should be made financially whole if an agency discloses following the initiation of a lawsuit, but before a court issues a decision.

Creating a Deterrent to Clear Violations of FOIL

            To create a deterrent to unreasonable delays and denials of access, and to make essential fairness part of the law, the Committee offers the following for consideration as amendments to §89(4)(c):

(c) The court in such a proceeding:

(i) shall award against such agency involved reasonable attorney’s fees and other litigation costs reasonably incurred by such person in any case brought under the provisions of this section when:

(A) the agency had no reasonable basis for denying access;

(B) the agency failed to respond to a request or appeal within the statutory time and the person denied access substantially prevails; or

(c) the agency failed to respond to a request or appeal within the statutory time, and disclosed the record or records sought in substantial part prior to the issuance of a judicial decision determining the propriety of the denial of access.

            The Committee notes that legislation was introduced during the 2005 session of the State Legislature to amend the FOIL in a manner consistent with recommendations offered in previous years. While we believe that the proposal offered above would be favorable, the enactment of the legislation introduced earlier this year, A. 4448 or S. 2641, would clearly strengthen FOIL.

STRENGTHENING THE OPEN MEETINGS LAW

“It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.”

– – Legislative declaration, New York Open Meetings Law

           Although the Committee believes that most public bodies attempt to comply with the Open Meetings Law and generally do so, numerous instances arise in which discussions occur in private that should have been held in public. The law requires that a public body approve a motion in public, citing a reason, before it may enter into an executive session. Frequently, while the reason may be valid, the body may drift into a new subject. Optimally, there will be at least one member who is sufficiently knowledgeable and vigilant to suggest at that point that the body should return to the open meeting to discuss the new subject. Sometimes that happens, but realistically, often it does not, and the discussion of a topic that should have been discussed in public is never heard. In other circumstances, public bodies enter into executive session without any valid basis for so doing. In any of those situations, information that may be critical to the public may be lost forever.

            Previous reports of the Committee have recommended amendments to the Open Meetings Law regarding its enforcement. Section 107 of the Law permits a court to invalidate action taken behind closed doors in violation of the Law. Invalidation is discretionary, and "good cause" to void an action must be shown. Moreover, some judicial decisions indicate that action taken by a public body may not be subject to invalidation when the Law is violated during a series of closed meetings held for the purpose of discussion only, but when a final vote is taken later at an open meeting [see Woll v. Erie County, 83 AD 2d 792 and Dombroske v. West Genesee Central School District, 462 NYS 2d 146 (1983)]; also Bergan v. Vallette, supra]. Therefore, if a public body deliberates toward final action behind closed doors in violation of the Law, and later takes "action" during an open meeting, there may be no substantive recourse under the current law. Stated differently, to avoid the most significant penalty that may be imposed by the Law, a public body might deliberate in private in violation of the Law but escape the penalty by taking action in public. Consequently, in a situation in which a violation is found, but in which invalidation is unreasonable, there may be no sanction, other than a judicial statement that a violation of law has occurred. The problem that remains is that there is little in the way of a deterrent to further violations.

            The Committee recognizes that invalidating action taken in violation of the Open Meetings Law may be unfair, as in the case in which a resident goes before the zoning board of appeals to add on a back porch and the board takes action in private, potentially resulting in the removal of the porch, thereby punishing the resident, rather than the board, or unrealistic, as in the case in which action is taken regarding a purchase by a municipality that occurred six months ago.

            In consideration of the possibility that voiding an action may result in unfair or unforeseen consequences and that deliberations might occur in private in violation of law followed by action taken in public, the Committee recommends that the second sentence of §107(1) of the Open Meetings Law be amended as follows:

“In any such proceeding, a court shall have the power, in its discretion, to declare any action or part thereof void in whole or in part when the action was taken or when substantial deliberations preceding the taking of such action occurred in violation of this article. A public body may not conduct a new vote to implement an action voided by a court until a meeting is convened to do so in a manner consistent with this article.”

Attorney’s Fees

            Absent from the proposal offered above is any provision that might serve as a reasonable deterrent to violations of the Open Meetings Law. In most states that have included severe penalties for violating their equivalent statutes, such as fines or even jail time, it rare that those sanctions are implemented. The monetary sanction extant in the Open Meetings Law involves the award of attorney’s fees. Subdivision (2) of §107 states that:

“In any proceeding brought pursuant to this section, costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party.”

While the provision quoted above may result in an award of attorney’s fees to a member of the public who is successful, attorney’s fees may, in the alternative, be awarded to a governmental entity payable by a member of the public. In the twenty-eight years in which the Open Meetings Law has been in effect, the latter has never occurred; attorney’s fees have never been awarded to the government. Rarely are attorney’s fees awarded at all, due in great measure to the reality that few suits are initiated under the Open Meetings Law – – for reasons considered above – – the enforcement mechanisms are weak and often hollow.

            As the Committee proposed in its recommendation regarding the award of attorney’s fees under the Freedom of Information Law, we recommend that an award of attorney’s fees be mandatory when a court has found that a public body has violated the Open Meetings Law by deliberating or taking action in private in contravention of that statute. In other instances, those in which the issue does not involve secrecy, i.e., a failure to fully comply with notice requirements, to offer a proper motion for entry into executive session, or to prepare minutes in a timely manner, the award of attorney’s fees should remain discretionary. In our view, the certainty of an award of attorney’s fees in a proceeding in which the court finds that “substantial” deliberations were conducted in private in violation of law would serve as a significant and meaningful deterrent. It would encourage members of public bodies and their attorneys to become more knowledgeable regarding the law and treat the law seriously.

            To achieve that goal, the following language should replace the existing subdivision (2) of §107:

“In a proceeding in which a court determines that substantial deliberations occurred or that action was taken in violation of this article, the court shall award costs and reasonable attorney’s fees to the successful party. In any other proceeding brought pursuant to this article, costs and attorney’s fees may be awarded by the court, in its discretion, to the successful party.”

            This proposal was introduced by Assemblywoman Paulin earlier this year (A. 8008).

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