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Lawmaker Proposes Court Review Of FOIL Denials

New legislation in the state Assembly aims to provide an outside review of Freedom of Information Law requests that are denied by the government.

Assemblywoman Linda Rosenthal, D-New York City, recently introduced A.7933. She proposes creating a special court proceeding for FOIL and Open Meetings Law reviews within the state’s Supreme Courts located in each county throughout the state, though the local state Supreme Court justice won’t be hearing the cases.

“This bill would further transparency and accountability by establishing a hearing officer system for open government cases,” Rosenthal wrote in her legislative justification. “Under the bill, an individual claiming a violation may file a petition to have their case heard by an independent panel of hearing officers.”

The review option would be made available after agency denies a FOIL request is denied and a subsequent appeal is also denied. Agencies that deny a FOIL appeal would be required to inform the person requesting information of their right to a court review and tell them where to obtain the appropriate forms. Appeals would have to be filed within 120 days of the agency’s appeal decision. Cases to review an Open Meetings law complaint would have to be made 30 days after the state Committee on Open Government makes an opinion or the public body responds to a person’s claim.

Filing the court case would cost $50 for each petition. Count clerks would receive $10 of that amount with the rest paid to the state Office of Court Administration.

Hearings would be held within 45 days of a petition being filed and can be held remotely or at a location within the county where the petitioner lives. Rosenthal’s bill does not require expert witnesses to be presented nor attorneys to be present, with proceedings conducted informally and not bound by rules of practice, procedure, pleading or evidence. It is up to the hearing officer to make sure the hearing runs smoothly. The agency or public body will have the burden of proof to convince the hearing officer that the information sought is exempt from FOIL and that fees charged are proper. A decision would have to be made within 30 days of the hearing.

The issues Rosenthal seeks to address have been raised the New York Coalition on Open Government. A report earlier this year by the coalition made eight suggestions for improving compliance with open government laws in New York, including a required four hours of training on the Open Meetings Law and FOIL for all town, village, city, county and school board members; reimbursing a plaintiff for attorney fees if a court determines an executive session was improperly held; and creation of a hearing officer system to address Open Meetings Law complaints and Freedom of Information Law appeals. The coalition also wants the state to create and pay for a program in the state Attorney General’s office to help the public with Freedom of Information Law and Open Meetings Law complaints.

“New York state allows access to public records through Freedom of Information Law requests,” Rosenthal wrote in her legislative justification. “Similarly, individuals are afforded the right under the Open Meetings Law to participate in government and its decision-making processes by attending meetings of public bodies and hearing debate. These laws were created to ensure a transparent government; however, the laws lack any accountability when citizens are unable to exercise these rights. For example, when a state agency denies a FOIL request, the same agency is then responsible for examining any appeals that are filed, allowing the agency to oversee itself. When violations of the Open Meetings Law occur, there is no system to address these complaints.”

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