By JOEY ARON
NEW YORK DAILY NEWS | JUN 24, 2020 AT 5:00 AM
In one of the most significant changes made in New York in the wake of George Floyd’s death, Gov. Cuomo signed into law the repeal of Section 50-a of the New York State Civil Rights Law. The law had protected certain personnel records of police officers, correction officers and firefighters — including disciplinary reports — from being disclosed to the public.
That’s progress, but with major limitations. Because even now, the primary mechanism to obtain such information is through New York’s Freedom of Information Law. The problem is that FOIL contains serious inadequacies that often prevent individuals and the media from obtaining government agency records.
First, FOIL allows for very lengthy delays in agency responses to requests for information. There are time limits in the law, but the courts have not interpreted them strictly. As a result, it can literally take years for an agency to substantively respond to a request.
Second, if someone makes a FOIL request that is not responded to promptly, the only real remedy is to seek judicial intervention, which also takes time. Doing so typically requires hiring an attorney, which makes it hard for the average member of the public or the media to pursue.
The law does have a provision that provides for the mandatory reimbursement of attorney’s fees and costs if a FOIL petition submitted to court is ultimately granted. But the Legislature did not make reimbursement of attorney’s fees mandatory in cases where an agency did not actually deny the request but merely delayed responding to it, commonly referred to as a “constructive denial.”
In these situations, it is solely up to the discretion of the court to award attorney’s fees or not. Agencies know this well, and so, instead of actually denying FOIL requests, they simply delay responding for as long as possible. Therefore, most attorneys will not take on a FOIL case where an agency has simply delayed in responding to the request, knowing they aren’t likely to be paid.
A third problem with FOIL is that courts often also take ages handling FOIL petitions. Cases are typically “lost” on court dockets, subject to frequent adjournments and other lengthy delays.
In contrast, the federal version of FOIL (known as the Freedom of Information Act, or FOIA) requires agencies to respond promptly to requests for records, and also provides for expedited processing in cases where the person requesting the records demonstrates a compelling need, such as requests from the media to inform the public about government activity. This is crucial, as the media and the public need timely information about government misconduct so that pressure can be placed on government to remedy the problem or correct the injustice.
What’s the solution? The legislature should fix FOIL by adopting the following amendments:
1. Put firm deadlines in the law so that agencies have to respond to requests within specified time limits and can’t unreasonably delay in responding. Include a specific provision mandating expedited requests in cases where the media has requested the information, as exists in federal law.
2. Require mandatory reimbursement of attorney’s fees and costs in cases where an agency unreasonably delayed in responding to a FOIL request and a petition through the courts had to be brought — not only in cases where the agency outright denied the FOIL request.
3. Impose deadlines on the courts in ruling on FOIL petitions, requiring them to hear such cases within a specified time period, and rule on them within specified deadlines, so that court delays don’t hold up the release of important government records.
Now is a perfect opportunity to make New York’s Freedom of Information Law a meaningful one, so that any member of the public can promptly find out what government agencies are doing, and so the media can get prompt access to information about government misconduct and activity and add sun to the sunshine law.
Aron is the founder of Aron Law, PLLC, a law firm in Brooklyn.