If Governor Hochul is serious about leading a more transparent administration, a good first step would be to reject the Cuomo-imposed policy that bars agencies from releasing “sensitive” public records until the Governor’s office has signed off.

That rule is in an internal Department of State document from 2018, which the Empire Center obtained. This policy violates the spirit if not the letter of the Freedom of Information Law and has slowed or blocked the publication of critical information, including data about the coronavirus pandemic.

The document, titled “Foil at a Glance,” lays out the Cuomo administration’s procedures for handling FOIL requests—including sending “sensitive” requests to the governor’s office for review and approval.

Factors for deciding whether a FOIL request is sensitive included:

  • “Is it from a media outlet?”
  • “Is it related to something political?”
  • “Is it connected to potential legal action against the Department?”
  • “Is it non-routine information?”

The DOS document provides timelines for handling sensitive FOIL requests. It establishes a four-week process for getting FOIL responses reviewed and approved by the Executive Chamber before release. The timeline contradicts the Legislature’s goal under FOIL that agencies disclose records within five business days. And it expects agencies to provide a written good excuse for not being able to respond to FOIL requests within five weeks. DOS developed a process for sensitive FOIL requests that intentionally ignores the disclosure deadlines under FOIL to accommodate the Executive Chamber’s approval process.

Anyone who made a FOIL request to a New York state agency in the Andrew Cuomo era undoubtedly saw some version of the DOS timeline in responses to their FOIL requests. But usually, the DOS four-week timeline was ambitious. In our experience, state agencies answered very few FOIL requests within a month. The usual response to executive agency FOILs was a letter from promising updates on the status of record searches and reviews at regular 30-, 60-, or 90-day intervals.

To its credit, the DOS FOIL response guide urged staff to check whether responsive records existed within the first five days of receiving a request. If the records were voluminous, DOS encouraged staff to work with counsel to determine a reasonable timeframe for responding to the request. This is consistent with the law. The DOS FOIL guidance and the letter of law raise a question as to the extent the Executive Chamber’s approval process for sensitive FOIL requests caused delay.

The good news is Hochul now claims she wants to get to the bottom of the state’s FOIL responsiveness. In a public address last week, the new Governor also promised she will “direct state entities to review their compliance with state transparency laws and provide a public report on their findings.” More transparency in the transparency process would be welcome. As would an accounting of the full extent of the Executive Chamber’s meddling in “sensitive” FOIL responses over the last decade.

About the Author

Cam Macdonald

Cameron J. “Cam” Macdonald is an Adjunct Fellow with the Empire Center and Executive Director and General Counsel for the Government Justice Center.

Read more by Cam Macdonald

You may also like

One of New York’s Biggest Medicaid Contractors Is Quietly Acquiring a Competitor

As state lawmakers debate the future of Medicaid home care, one of the program's biggest contractors is quietly doubling its market share by buying a competitor. In December, , the Read More

The Union Gave Them the Wrong Data. The Pols Cited It Anyway.

The episode shows the extent to which New York elected officials fail to question the state’s public employee unions—or look at data themselves. Read More

New York’s Home Health Workforce Jumped by 12 Percent in One Year

New York's home health workforce has continued its pattern of extraordinary growth, increasing by 62,000 jobs or 12 percent in a single year, according to newly released data from the U.S. Bureau of Labor Statistics.  Read More

While New York’s Medicaid Budget Soared, Public Health Funding Languished

Four years after a devastating pandemic, the state has made no major investment to repair or improve its public health defenses. While funding for Medicaid over the past four years Read More

Unions are pressing bogus arguments for blowing up NY’s public pension debts

New York's public employee unions are arguing, without evidence, that state lawmakers need to retroactively sweeten the pensions of workers who have been on the job for more than a decade. In fact, state and federal data show why state lawmakers shouldn't. Read More

A Medicaid Grant Recipient Sponsors a Pro-Hochul Publicity Campaign

While much of the health-care industry is attacking Governor Hochul's Medicaid budget, at least one organization is rallying to her side: Somos Community Care, a politically active medical group in the Bronx that recently r Read More

New Jersey’s Pandemic Report Shines Harsh Light on a New York Scandal

A recently published independent review of New Jersey's pandemic response holds lessons for New York on at least two levels. First, it marked the only serious attempt by any state t Read More

Senate, Assembly Budget Plans Include $4B Pension Giveaway

A little-noticed provision in lawmakers’ budget proposals would also be the most costly: their proposal to change state retirement rules would slam New York taxpayers with more than $4 billion in new debt, and immediately drive up pension costs, by retroactively sweetening the pension benefits of public employees. Read More