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Cuomo's FOIL Order Has More Limited Scope Than Vetoed Bills

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Gov. Cuomo (photo: Kevin P. Coughlin/Office of the Governor)

When Gov. Andrew Cuomo vetoed two bills that would have strengthened the Freedom of Information Law last Friday he framed his action as though the bills were an assault by the legislature--a legislature that refuses to operate under the same set of FOIL rules. A message accompanying his subsequent executive order, which calls for the speeding of FOIL appeal responses, promised: "We will introduce a bill early next year to bring the same, necessary high standards of transparency to the legislature."

Cuomo is now expected to meet with a number of stakeholders in the FOIL debate on Wednesday, including representatives of good government groups.

Assemblymember David Buchwald, sponsor of one of the vetoed bills, told Gotham Gazette that he rejects the ideas that his bill was an attack on the governor and that the issue is one that pits Cuomo against the legislature. He notes that the Assembly has passed his bill for years, that is has been around since before Cuomo became governor, and that, importantly, it has a far wider scope than Cuomo's order. Buchwald says his bill would make executive agencies, local governments, the comptroller and attorney general offices, and the legislature file appeals to FOIL requests within 60 days.

Cuomo is certainly correct that the Freedom of Information Law significantly limits the type of legislative records that are available to the public.

"There are always people who argue that you can't improve some things until every single thing has been improved, but that position doesn't improve things for New Yorkers. It is designed to make sure there is no change," Buchwald told Gotham Gazette.

"This piece of legislation primarily comes out of the Committee on Open Government, which is an executive branch agency. The governor might be right to point back to the legislature, but this legislation has been on his desk and he could have acted at any time. It is not a mere football to be part of this battle," Buchwald said.

John Kaehny, executive director of Reinvent Albany, noted that most state legislatures are not subject to FOIL and that New York's FOIL is modeled after the federal Freedom of Information Act which does not cover legislative or judicial records. Reinvent Albany issued a report on Tuesday comparing Cuomo's executive order to the vetoed legislation, declaring the order a "setback for transparency."

The report goes on to rebut Cuomo's criticisms of the vetoed bills:

"Previous governors have signed bills strengthening and modernizing FOIL, including the biggest recent change, which explicitly addressed emails. Yes, FOIL should apply to the state legislature, as it does in almost two dozen states. But it is bizarre and unprecedented for a governor to veto FOIL bills which strengthen the existing FOIL—which applies to state agencies and authorities and non-profits, the attorney general, comptroller, and all local governments—because it does not apply to the legislature."

Buchwald noted that Cuomo could have introduced legislation at any time to increase the strength of FOIL.

The governor's subsequent executive order took part of Buchwald's bill and implemented it for the executive branch - requiring executive agencies to appeal a judge's decision to grant a FOIL request within three months, down from nine. But Buchwald's bill would have required an agency submit an appeal within 30 days and finalize the paperwork within 60.

Additionally, Buchwald's bill applied those rules to not only the executive but the comptroller, attorney general, local governments, and authorities. Authorities have become of particular interest to the press corp and good government groups as the Cuomo administration has funded the Buffalo Billion economic development program through such mechanisms and has been criticized by many for a lack of transparency. United States Attorney Preet Bharara is reportedly investigating contracts related to the Buffalo Billion.

Bob Freeman of The Committee on Open Government told State of Politics that he is involved in discussions with the governor's office about revamping New York FOIL. "Although they were indeed vetoed, I've already spoken to the counsel to the governor, we will be working soon on developing legislation that involves a meeting of the minds that would advance the goals the Committee on Open Government has expressed," Freeman said of the two bills.

"The executive order the governor issued hours later shows that there is a lot of merit to my bill but it would have applied to local governments, the attorney general, comptroller and authorities. And the governor's order doesn't touch any of Assemblywoman Paulin's bill," Buchwald said.

Paulin's legislation, also authored by The Committee on Open Government, would have changed a single word in the law from a judge "may" award legal fees if an agency is found to have improperly denied a FOIL request, to "shall." Five other states, including California, New Jersey, and Illinois have such a law.

The Cuomo administration appears to be responding to criticisms of the vetoes and subsequent executive order with a heightened sensitivity. Sources say Cuomo counsel Alphonso David has made an unprecedented number of calls in a short period of time on the matter. A number of sources told Gotham Gazette that they hope the Cuomo administration is actually looking for input from interested parties during Wednesday's meeting and not simply going to reveal their plan while demanding endorsements. Cuomo appears ready to make a renewed push on ethics reform in January when legislators return to Albany. This appears likely to include an expanded FOIL bill.

Freeman told State of Politics that Cuomo's executive order is a "positive step forward," but that "It's not nearly as expansive as a law would have been."

by David King, Albany editor, Gotham Gazette

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