Right-to-Know Law has too many exceptions, he says

By Cara Matthews
(Elmira, N.Y.) Star-Gazette

ALBANY — While Pennsylvania's new Right-to-Know Law is widely considered a major change for the better, a longtime New York open-government expert claims it is fraught with potential problems.

"I don't think that this is a panacea," said Robert Freeman, executive director of the New York Committee on Open Government. "It may be an improvement, but there are in my opinion lots of areas in which the law could have been drafted more effectively."

Pennsylvania's Right-to-Know Law has been criticized for putting the onus on information seekers as to why records should be public. The revamped statute, which takes effect Jan. 1, will be like New York's in that it is based on a presumption of access.

Freeman criticized a number of exceptions to disclosure in the Pennsylvania legislation that aren't in New York law, including notes and working papers prepared by or for a public official or employee that are for personal use, such as telephone message slips.

Other exceptions New York doesn't have:
▪ Complaints submitted to an agency, work papers underlying an audit, draft minutes and other records. In disclosing complaints, New York agencies can withhold the name.
▪ Pennsylvania exempts performance evaluations and the employment application of someone not hired by an agency. In New York, some information on a performance evaluation and an employment application can be withheld, Freeman said.
▪ The Pennsylvania law states that it does not supersede or modify the public or nonpublic nature of a record established in federal or state law, by regulation or judicial order or decree. New York law covers exemptions under statutes but not agency regulations.

Most exceptions in New York are based on a harm standard, said Freeman, who has been with the committee since 1974.

New York's first Freedom of Information Law took effect in 1974 and was revamped in 1977. The committee provides advisory opinions and training and responds to inquiries from government officials and the public.

"The question that I always raise ... is really simple. What would happen if the government had to disclose? And unless the gut reaction is, 'Ouch, that would really hurt,' the records should be made public," Freeman said.

Pennsylvania and New York are similar in exceptions granted to the state Legislature, Freeman said.

Changes to New York's Freedom of Information Law this year require that agencies provide records in the medium requested, such as compact discs, and that judges award attorney's fees for violations of the Open Meetings Law.

In a new report, the New York Committee on Open Government recommends legislation to require that certain records automatically be posted online, mandate that records discussed at open meetings be available before or at meetings, and limit the open-meetings exemption for political caucuses.

The Legislature passed the bill for online posting this year, but Gov. David Paterson vetoed it on the grounds that it could overburden agencies. The committee has rewritten its proposal to include a caveat that this should be done "to the extent practicable."

Providing the records is the only way that people are going to have confidence in government, said Assemblywoman Amy Paulin, D-Scarsdale, Westchester County. Objections can be raised when there are large volumes of material, but it's just a few sheets of paper in most cases, she said.

Paulin was a sponsor of the Open Meetings legislation this year. Under the new law, a judge has to order that attorney's fees and costs be paid to the plaintiff when secrecy is the issue in the suit. That doesn't apply when compliance with other aspects of the law is the crux of the case.

The Committee on Open Government wants to extend that provision to violations of FOIL, along with a requirement that appeals be expedited in FOIL litigation. Currently, judges have discretion in ordering costs and fees.

Also this year, Paulin sponsored successful legislation that requires agencies to design future computer systems so public and non-public information can easily be separated.

Another provision of Pennsylvania's law states that agencies don't have to create new records to respond to a Right-to-Know request. A new provision in New York law states that any programming necessary to retrieve a record in a computer system and transfer it to the medium requested is not considered creating a record.

Pennsylvania's law has a fairly broad definition of the term record, but it seems restrictive and could exclude government records that are not connected with business, transactions or other agency activities, Freeman said. An example would be documents relating to a government official's work as a political party leader, which would be public in New York.

New York's law speaks to records kept, held, produced or reproduced by, with or for a government agency. That includes private companies hired to do government work, something that isn't accounted for in the Pennsylvania law, Freeman said.

New York's courts are not subject to FOIL, but there are other laws that deal with the courts that require all records filed with the courts be public, with some exceptions. Pennsylvania's new law applies to courts, which could lead to more exceptions, Freeman said.

Proposed changes
Additional changes to New York Freedom of Information Law and the Open Meetings Law proposed by the state Committee on Open Government include:
▪ Provide agencies clear authority to waive fees when doing so is sensible and cost-effective. Unless otherwise authorized, no fee should be assessed for reviewing records, personnel time or other costs.
▪ Require notices of meetings to be posted online.
▪ Mandate that attorney's fees be awarded when someone is improperly denied records, rather than leave the decision up to the judge.
▪ Authorize courts to invalidate action of public bodies if substantial deliberations occurred in secret.
▪ Limit the open-meetings exemption regarding political caucuses.
▪ Subject records that are maintained and meetings conducted pursuant to the state ethics law to the same disclosure standards as other governmental entities.
▪ Authorize reasonable use of cameras in the courtroom.
▪ Allow law enforcement agencies discretion in disclosing 911 records and considering the privacy of callers.
▪ Amend the Civil Rights Law to clarify that protecting against the disclosure of a sex-offense victim's identity should not be used as a shield against disclosing information on the alleged offense or defendants.