New York’s toothless FOI Law

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Criminal justice reporter Bruce Rushton. Photo by Garrett Looker.

I’ve been a reporter for a half dozen daily and alternative news organizations, including Investigative Post, in five states since 1987. New York has been the worst one I’ve worked in when it comes to public records.

In Illinois, government turns over documents because the law matters. That’s why Rahm Emanuel is ambassador to Japan instead of mayor of Chicago, where autopsy reports, unlike here, are public records.

While mainstream media slept, an independent journalist 10 years ago exposed a Windy City murder by requesting the autopsy report on Laquan McDonald, whom cops claimed had threatened officers with a knife and so was dispatched with a shot to the chest. The autopsy report showed 16 bullet holes.

Thanks to that records request, the cop who killed McDonald ended up in prison. There was no path to reelection for a mayor who tried hiding the truth and was defeated by a law that forced the city, after autopsy results were released, to make public a video showing an officer gunning down a teenager who wasn’t threatening anyone.

After Illinois put teeth in its freedom of information statute in 2010, I sued for records 19 times in the space of a decade while working for a weekly paper in Springfield, the state capital, and didn’t lose a case. Lawyers took the cases on contingency, so I didn’t pay a dime in legal fees.

Records pried into public light included files on a secretary of state official who set up her own private automobile licensing division in a state building and kept monies paid for plates and tags. I also sued police and a school district to get reports on a pedophilic teacher who was shuffled from school to school. The company that holds the contract to provide health care to state inmates was required to give me documents showing amounts paid to settle malpractice claims after the state Supreme Court ruled that such records are public, not trade secrets, as the company had claimed.

It’s hard to imagine the same thing happening in New York State.

Last year, I asked Buffalo police under the state Freedom of Information Law for records requested by the public and the department’s response. I wanted to know if government was being responsive to the general public. It should have taken someone less than 20 minutes to email the goods. I’ve been waiting more than a year. The cops first told me that redacting records already released would be expensive. When I asked what would have to be excised from a record already released to the public, they ignored me.

It took four months to pry helicopter flight logs and financial records from the Erie County sheriff’s office, which treats deadlines in the Freedom of Information Law as suggestions. 

In another request, I’ve been waiting more than five months for tapes and transcripts of witness interviews produced during internal affairs investigations of Kiam Gunn, a Buffalo cop hired despite a history of arrests who remains on the job despite a series of citizen complaints.

I’m not alone.

More than four years after state legislators repealed a statute that allowed departments to withhold internal affairs files, Buffalo police and the New York Civil Liberties Union remain locked in litigation to make public what state lawmakers have said should be public.

The NYCLU sued in 2021 after Buffalo cops ignored a request for disciplinary files on active and recently retired officers. In 2022, the parties made a deal: The cops would turn over the files, but they couldn’t be made public until the police and the NYCLU decided what should be redacted. Two years later, the records still have not been made public.

That’s not how they roll in other states.

Washington state, where I landed my first job in journalism, is the best. Not only must government pay legal costs if requesters sue and prevail, the law prescribes fines calculated on a per-day basis: The more government delays, the more it pays.

By and large, ordinary citizens, not the media, have collected. One of the first was Armen Yousoufian, a hotel owner concerned about a tax on hotel rooms to help buy a stadium for a football team owned by the late Paul Allen, a billionaire who stood to get even richer.

After government refused to turn over studies justifying the tax, Yousoufian sued. He won. Then he appealed, arguing that a $124,000 fine imposed by the trial court, payable to the plaintiff, wasn’t sufficient to curb future bad behavior. The state Supreme Court agreed and awarded Yousoufian $45 for each day the government violated the law by withholding records. The total exceeded $371,000.

“It sounds like a lot of money, but it’s a very small cost of doing business,” Yousoufian told the media after the decision. He wondered whether the fight was worth it.

It was.

Consequences matter, and so it’s much easier to get records in Washington than in New York state. Constituents in the Evergreen State get mad when tax dollars go to plaintiffs forced to sue for public records, and so public officials pay attention when asked for documents.

Six-figure fines might sound lavish, but it’s a pittance compared to what New York state residents now pay for dysfunction in producing public records.

Beyond the incalculable cost of ignorance, we are paying to sustain the state Committee on Open Government, which has five employees and largely dispenses advice and issues annual reports bemoaning well-known weaknesses in the Freedom of Information Law that are routinely ignored by lawmakers. The committee, which has no set annual budget, also issues advisory opinions when someone doesn’t get records. It has no power to enforce the law. Only judges can do that.

The solution is as simple as it is difficult.

The law now says government doesn’t have to pay legal fees if there was a reasonable basis for withholding records from a plaintiff, which begs the question: What’s reasonable? It’s a question only a litigator could love, so let’s follow the lead of Washington, Illinois and other states that require government to pay legal costs if government loses, period.

That would encourage government to think twice before ignoring requesters while giving lawyers incentive to take cases for plaintiffs without deep pockets.

Politicians don’t make friends in government by mandating open government, so good luck finding someone with sufficient juice to make this happen. But, if other states can do it, why not New York?

Bruce Rushton