Coalition: Despite Hochul pledge, state agencies still failing to track info requests

May 3—As part of her September 2021 pledge to usher in a new era of greater transparency and accountability in New York state government, Gov. Kathy Hochul directed 70 state agencies to assess and evaluate their existing Freedom of Information Law policies and practices.

On Thursday, the New York Coalition for Open Government announced the findings of its test of just how well those state agencies responded to Hochul's directive.

In its latest report, coalition members found a majority of the agencies were responsive in replying to initial Freedom of Information Law requests and in providing the information requested within timeframes required under state law.

On the downside, coalition members — who submitted FOIL requests to all 70 of the state agencies Hochul directed to develop transparency plans more than two years ago — determined that the vast majority are not keeping up-to-date information and logs on how many requests they receive and how those requests are being handled.

"We picked these 70 state agencies because they are the 70 agencies that Governor Hochul directed to have transparency plans. So these agencies all have a transparency plan of some sort. Some are good. some are not very good," said the coalition's founder and president, Williamsville attorney Paul Wolf.

As part of its compliance review, in July 2023, the coalition filed formal requests to obtain the following 2022 records from the 70 state agencies:

—Number of FOIL requests received

—Number of FOIL requests granted in full or in part

—Average processing time to complete FOIL requests

—Number of administrative appeals received

—Number of appeals that upheld initial denials either in full or in part

During a press conference via Zoom on Thursday, coalition members said the 63 agencies that responded to the group's FOIL requests reported having received a total of 79,523 similar requests in 2022.

Coalition members reported that 88% of those agencies acknowledged the group's FOIL requests in a timely fashion, meaning within the five business days required under state law.

"It should be 100 percent but overall very good as far as acknowledging our request," Wolf said.

The numbers were also what Wolf described as "very good" in terms of the agencies providing the info requested, with 60% turning over requested information within 20 business days and 83% doing so within 30 business days. The coalition also documented what Wolf described as a few "laggers," including one agency that took 183 days to fully respond to the group's FOIL request.

Of the agencies that responded to the coalition's request for information about requests that had been denied and appealed, the group's analysis showed members of the public were successful in getting the records they were initially denied, via appeal, only 35% of the time.

The coalition's review also found many of the 70 state agencies were unable to provide detailed information on who filed requests with them, what those requests involved and whether those requests were honored or denied or honored following an appeal. The coalition determined only 20% of state agencies were able to explain how they track their requests and even fewer kept request logs.

"What this report shows is very few of them are able to tell us how many requests they've received in a year, let alone what the average response time was," Wolf said.

"Very few are tracking it," he added. "They don't know how many denials. They don't know the reasons for the denials. They don't know the reasons for the appeals and this shouldn't be a mystery."

In general, Wolf and other coalition members say the state, despite Hochul's promises of a more transparent government, still has a long way to go to improve the flow of public information and adherence to state law already on the books.

On Thursday, they suggested New York State should adopt a system similar to one that exists at the federal level which requires agencies to track requests they receive and to document response times as well as a number of denials and appeals. Wolf said similar systems are already in place in neighboring states, including Pennsylvania and Massachusetts. In adopting a similar system in New York, coalition members would like to see FOIL log information forwarded to the New York State Committee on Open Government so it can be posted online to provide easier access to the public.

"We use that as a model, as a practice that we should implement here in New York," Wolf said.

Coalition members expressed support for a bill currently under consideration in Albany that would create an independent hearing officer process to allow an entity separate from state government to enforce open meetings and Freedom of Information laws. Wolf said the proposed bill would create a system similar to the state's current tax assessment challenge process only for FOIL request issues.

"There should be some other way to address open meeting law complaints, FOIL complaints, short of going to court and we believe there should be a hearing officer system created," Wolf said.

Coalition members are also continuing to advocate for the passage of bills currently under consideration in the state Legislature, including one that would impose a 30-day deadline for responding to FOIL requests as well as a 60-day cap on the amount of time a state agency has to release documents deemed public under state law. Another bill high on the coalition's list would make it easier for attorneys representing clients who are successful in FOIL litigation to be compensated for their work.

Wolf and other coalition members called on residents and voters to get involved, encouraging them to contact their state lawmakers and the governor's office as part of their push to enact reform legislation. More details about those bills can be found on the coalition's website at https://nyopengov.org/

"We need people to help get these bills passed," Wolf said.