Public officials looking to meet secretly or hide information may face consequences that hit them right in the wallet, if legislation sponsored by State Assemblyman Fred W. Thiele Jr. is adopted. This week, he’s filing proposed amendments to the state Freedom of Information Law, or FOIL, and the state Open Meetings Law calling for penalties for violations.
The basic precepts of both laws relate to the public’s right to know. FOIL is supposed to guarantee public access to government records and documents —allowing people to request copies of most public documents, while open meetings law ensures most government business, with very few exceptions, is carried out in an open and public manner — calling for all public business to be conducted in public meetings. Both laws are subsections of the state’s Public Officers Law. “The people must be able to remain informed if they are to retain control over those who are their public servants,” the Open Meetings Law legislative declaration states succinctly.
The first bill, once adopted, would assess a penalty of up to $1,500 should a court find access to records was denied without a reasonable basis. Refusal to obey a court order to release documents could result in a penalty of up to $500 per day.
The second bill states that any public official guilty of purposely violating the open meetings law could be liable for a fine of between $350 and $1,000 for the first offense. And they have to pay it out of pocket. The law states the municipal body “shall not” make the payment or reimburse the violator.
“The idea here, this isn’t novel. The provisions that we’re proposing in New York are the law in Pennsylvania,” Mr. Thiele explained. “Other states have gone this route.”
“It’s pretty simple,” the lawmaker said, offering the reason for the measure. “There’s really no deterrent, no penalty for not complying with these laws.”
In 2008 and 2017, provisions were added to the laws that required violators to pay court expenses, but that penalty could kick in after a lengthy court case. “Excessive delays defeat the very purpose of these laws,” Mr. Thiele said. These measures are the next step, he said.
“The whole idea is to encourage local governments to comply with these laws,” he said. And to the notion of individual officers being assessed penalties, he said, “It’s not a deterrent if the local government is going to pay your fine. All the provisions I put into my bill have been enacted in other states.”
Asked what prompted the crafting of the measures, Mr. Thiele mentioned Express News Group Executive Editor Joseph P. Shaw. “Joe Shaw and I have had a running conversation about the Freedom of Information Act and the Open Meetings Law, and I think some of it goes back to the Southampton School district.”
In 2016, The Press launched a lawsuit after the Southampton School District refused to release information about an investigation that led to the resignation of its then superintendent, Dr. Scott Farina. The separation agreement came with a $300,000 payout. In the lawsuit, The Press argued that the information being sought “unquestionably [involve] matters of significant public concern” and led to Dr. Farina’s decision to resign. It noted that the district’s “blanket refusal” to provide any information violated FOIL. “The significant public interest in such information … overwhelms any possible privacy interests here,” The Press News Group’s attorneys argued.
Two years later, in what Mr Shaw called “a victory for access to public information,” the court ordered the district to turn over the information.
“It’s a long running conversation about the shortcomings of these laws … Joe brought to my attention some of the penalties and provisions in other states,” Mr. Thiele explained.
“We’re looking for a Senate sponsor,” he said. “I don’t think we’ll have any problem getting it.”
There are a number of senators who historically have had interest in this topic, the assemblyman said.
Who wouldn’t support the bills? Local government entities like New York State Association of Counties or the Association of Towns or the New York Conference of Mayors could oppose it, Mr. Thiele speculated. “They’re not going to be supportive of higher penalties for people they represent.”
On the supportive side, Mr. Thiele anticipates good government groups like the New York Public Interest Research Group would back the move. NYPIRG is a non-partisan, nonprofit, research and public education organization. It counts government accountability among its key focuses.
“Nursing home deaths due to the pandemic have highlighted the ongoing discussion of government transparency,” Mr. Thiele believes. Attorney General Letitita James issued a scathing report that found Governor Andrew Cuomo’s administration under-reported the number of coronavirus deaths in nursing homes. A subsequent court decision directed the governor’s office and department of health to release nursing home records required
“There’s a lot of focus on government transparency now, and that makes it the right time to give real teeth to freedom of information and open meetings,” Mr. Thiele concluded.
Ava Lubell, the Cornell Law School First Amendment Clinic’s attorney for journalists, also used the term “teeth.”
“Anything that attaches teeth to the Freedom of Information Law would be beneficial,” she said, noting that she crosses paths with a lot of “frustrated folks” through her work. Journalists and members of the general public alike have been conditioned to have low expectations and accustomed to public officials deprioritizing transparency, the attorney said.
“We can as a state do better,” she said.