Another year, another battle over police transparency at the New York State Capitol.
Gov. Kathy Hochul will soon decide whether government agencies can continue to block access to public records by simply claiming that releasing them could harm an ongoing investigation.
If Hochul approves the bill, and thus alters a clause in the state Freedom of information Law, state and local agencies would need approval from the office conducting an investigation – a police department, district attorney or the like – confirming that releasing the documents could interfere with an open probe. Under a bill lawmakers passed last year, a judge would have had to make that determination.
The measure has support from Reinvent Albany, an organization that advocates for government transparency at the Capitol. The group released a memo Thursday that concluded the bill “somewhat increases public access to government records” by making it a bit tougher to wrongfully deny access to documents.
But some attorneys who specialize in Freedom of Information cases disagree. They say the 2021 law was preferable since it would have taken the decision out of the hands of police and district attorneys — who may have more interest in shielding records than a judge.
The bill is not directly related to another public records law that has been in the news lately – the historic 2020 repeal of state Civil Rights Law Section 50-a, which opened up police discipline records and complaints to the public for the first time in decades. But Cory Morris, a Long Island lawyer who has been actively seeking the release of disciplinary files, opposes the bill Hochul is considering, warning that it would again make it harder to access disciplinary records.
“The previous law was a huge step forward,” Morris said. “But if this is signed into law, this is going to be taking, like, a mile back.”
What did the 2021 law actually do?
New York’s Freedom of Information Law gives the public the right to correspondence, documents and other records produced by their government. Any member of the public can file a formal request with a state or local agency to seek access to them.
But there are a handful of exemptions — instances where government entities can withhold access. One of those exemptions is for records that, if disclosed, could “interfere with law enforcement investigations or judicial proceedings.”
Open-records advocates have long claimed that particular exemption has been abused. Former Gov. Andrew Cuomo’s office, for example, denied access to some records related to his own handling of COVID-19 in nursing homes, citing the ongoing federal investigation in 2021.
The 2021 law sought to change that by requiring that a judge – not the agency in question – decide whether the release of the records would actually harm the ongoing proceeding.
The effort to change the law stretches back to 2011. It was first put to a vote in 2019, but was vetoed by Cuomo. The legislature passed it again in 2021, but it didn’t reach the governor’s office until Cuomo had resigned and been replaced by Hochul. But rather than signing or vetoing it outright, she did something in between: Signed it on the condition that the state legislature make significant changes to it when they return to the Capitol in 2022, a process known in Albany parlance as a “chapter amendment.”
Hochul was concerned that requiring judges to weigh in on individual FOIL requests could cause considerable delays, both in their calendars and in processing the requests. She was also worried about another part of the legislation, which she said risked publicly identifying some sex crime victims.
She signed the 2021 bill on the condition that lawmakers approve the chapter amendment – which the Senate did in January and the Assembly did March 2.
It’s clear, though, that police agencies and district attorneys weighed in with concerns, too.
“We received expressions of concern from many district attorneys, many law-enforcement entities within the state,” said Assemblymember Steven Englebright when Republicans questioned him on the need for the changes.
“They felt that there was a need to really check with them before relying singly upon a particular judge. And so we listened and made this adjustment.”
What happens now? Will Hochul sign the bill?
Hochul is almost certain to sign the 2022 bill into law, considering her office negotiated the changes in the first place.
Her spokesperson, Hazel Crampton-Hays, said the amendment ensures “there are no unnecessary delays or confusion in the production of records.”
John Kaehny, executive director of Reinvent Albany, agrees with her. He said the 2022 bill will force state agencies and law enforcement to better explain their reasons for withholding access to public records.
“The totality of it is that this strengthens FOIL a little bit,” Kaehny said.
But Morris and like-minded Freedom of Information attorneys take an opposite view. They say involving judges in the process was the key provision of the 2021 law, and taking them out of the equation essentially guts it.
"A neutral magistrate would make that determination, and that's consistent with other states,” Morris said. “It's also consistent with good policing. Why? Police shouldn't police the police."