Opinion: FOIL is broken. This bill could fix it.

Transparency is a critical tool for a functioning democracy. Now more than ever, we have a duty to reinforce trust between government and citizens – exactly what Freedom of Information Law was intended to do. But the law is not working as it should.

This Sunshine Week, it’s imperative that the state Legislature take action to reform FOIL to require deadlines, provide for transparency in how many requests each agency is getting, and allow those that substantially prevail in lawsuits to recoup reasonable attorneys fees. 

Shane Ferro, a public defender in New York City, sent out her first FOIL request nearly six years ago, as a law student. Her request was to the New York City mayor’s office, regarding documents related to the city’s Vision Zero campaign, just after 20-year-old cyclist Robyn Hightman was run over by a truck and killed on Sixth Avenue. As required by law, the mayor’s office quickly acknowledged her request. Then, it did nothing. Ferro graduated from law school, took the bar and began working as a public defender. Still, not a peep from the mayor’s office. Then a new mayor was elected. Ferro is still waiting for a response.

“Every three to six months, I get an email from the city saying that the time to respond to my FOIL request has been extended,” Ferro said. “I’ve received 24 extension emails since I made the request in July of 2019. I’ve never received a single document related to my request, never spoken to a human about it and also never had the request explicitly denied. It’s just an indefinite purgatory of form emails.”

Her experience shows the consequences of our current FOIL law’s lack of teeth when it comes to prescribing a timeline for the government to actually produce documents. It’s unclear whether the mayor’s office has violated the law as it’s currently written, and it’s unlikely anyone in a similar situation could receive an answer without entering into litigation. What should be a right to public information is, in practice, a right for government agencies to delay indefinitely until someone with deep enough pockets comes along to sue. Denial by delay.

I currently have a bill pending in the state Legislature, the FOIL Timeline Act (S.2520/A.3425) which would address this deficiency by adding definitive timelines for agencies to respond to requests.

Because agencies are currently not required to publicly report how many requests they get or respond to, it’s impossible to know whether Ferro’s case is unusual or if she is just one of many waiting more than half a decade to hear back from their government. Ferro has not appealed, because as a lawyer, she knows that one of the few strict deadlines our FOIL law has pertains to the requestor: after an appeal determination – or 10 days without hearing back – the clock starts ticking on a four-month window in which a requestor can file an Article 78 lawsuit in order to fight for the right to the information. My new bill sets a firm cap of 60 days for requestors to receive documents and, if necessary, appeal and sue within a reasonable timeline.

Many submitting FOIL requests don’t have the personal resources to litigate unanswered requests. In some cases, litigants can be denied attorneys’ fees even if they win, so Ferro – and so many others – choose to wait.

Ferro might hear back from the mayor’s office, maybe even before the decade is out. Until then, she and I will both keep pushing for FOIL reform.