“From Day One, I’ve been committed to restoring New Yorkers’ faith in their government by improving transparency and increasing accountability.” That was Governor Hochul in 2021 when she announced a transparency initiative for executive agencies and unveiled agency plans to improve transparency and accountability.
She followed up last March, announcing that the state would acquire “a software platform which will accelerate and streamline the State’s process for receiving, processing and responding to [public records] requests.” “We’re taking meaningful action to streamline the process to access public records, so journalists and members of the public can more easily access information to which they are entitled,” Hochul added.
But she’s not leading by example.
In her own transparency plan, Hochul committed to expanding public participation in government, strengthening public integrity compliance, and changing the way the Executive Chamber handles its records and records requests.
On the records front, however, Hochul’s Executive Chamber is not even pretending to follow the Freedom of Information Law (FOIL). Anyone sending a FOIL request through Hochul’s portal gets an automatic response advising them the Executive Chamber has received the request and will provide an update in a month. But that’s not the law.
The Legislature designed FOIL for requests to be answered and records disclosed within days or weeks. Section 89(3)(a) provides that agencies “within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it” or “deny such request in writing.” If they cannot, they are supposed to grant or deny requests within another 20 business days.
Any longer should be under extraordinary circumstances, as Section 89(3)(a) of the Public Officers Law is written. And the agency must supply, in writing “the reason for the inability to grant the request within twenty business days” and a date certain for granting or denying the request.
Nowhere in FOIL did the Legislature contemplate agencies promising to give an update a month after receiving a request. The governor’s auto-response is a symptom of the state’s anti-transparency disease. And Hochul caught the bug.
Experienced FOILers will note Hochul’s staff is just cutting to the chase with her autoreply. No one should expect a FOIL response from most state agencies within a month. Often, agencies promise future updates for months, which can spread into over a year.
True to form, a December 16, 2022 FOIL request for the Executive Chamber’s copies of the governor’s messages of necessity (allowing a vote on legislation less than 72 hours after reaching legislators’ desks) over the last five years generated an auto-response showing that an update on the request would be supplied on or before January 16, 2023.
The Executive Chamber has given three more “updates” extending its response date 30 days each time, without explanation. The next scheduled update is on or before April 12, 2023. Four months to answer a simple records request belies Hochul’s stated transparency commitment.
Hochul is not leading by example, including by not allocating resources so that agencies disclose records on the schedule the Legislature set in FOIL, starting with the Executive Chamber.
The public could measure FOIL response performance if the Executive Chamber posted a log of FOIL requests. It’s something Hochul promised, but no such log can be found on Hochul’s website. Yet it is not something that needs to be complicated.
For example, the Florida governor’s office posts responses to public records requests on its website. Florida uses a Microsoft SharePoint site and posts PDF versions of the records the governor’s office discloses, organized by month. It is not the most user-friendly system, but the records are there for anyone interested.
On a positive note, the governor’s’s office met a couple of its 2021 transparency plan goals. It eventually posted the Executive Chamber aircraft and vehicle use policies. And Hochul appears to have ended her predecessor’s process for running politically sensitive records requests made to agencies through the Executive Chamber for approval. But Hochul has a long way to go on some of her other promises.
Governor Hochul should also keep her promises of more proactive disclosure and demanding the same from state agencies. And here again is where she should lead by example.
Governor Hochul in her 2021 transparency plan committed, among other things, to publishing an Executive Chambers organization chart on her web page. She has not. A diligent searcher can find a list of governor and lieutenant governor staff with other “frequently FOILed documents.” Yet her colleagues in Florida and California show that posting organizational charts can be done.
Governor Hochul also committed to creating “a single webpage dedicated to boards and commissions” that would “offer basic descriptions of boards and include a portal to apply to be on a board.” But no such list or portal can be found on her website.
It cannot be that complicated. Hochul’s colleagues in Florida and California have figured it out. They have pages on their websites where Floridians and Californians can apply for gubernatorial appointments.
To some readers all this may sound familiar. Hochul’s predecessor entered office just over a decade before professing enthusiasm for ethics reform and greater transparency that waned over time. Hochul lost her enthusiasm in less than a year. Her 2023 State of the State Book contains no mention of her executive agency transparency initiative.
And while Governor Andrew Cuomo was no hero of transparency, his administration did usher in a few positive changes. An executive order in 2015 directing state agencies to expedite briefing on their appeals to 60 days—shortened from nine months under the rules at the time—became law the next year. Cuomo further signed into law bills making it easier for prevailing parties in FOIL litigation to be awarded attorney’s fees and litigation costs.
He also championed public integrity legislation—creating Project Sunlight—designed to provide the public with reports on appearances made by individuals and entities, and their representatives, before the New York state government.
Enthusiasm for Project Sunlight fell under Cuomo, even while his state government grew. In its first full year in 2014, the Project Sunlight database had 5,199 records for meetings reported by executive branch officials. By 2019, meetings recorded in the Project Sunlight database fell to 1,983.
Hochul, to her credit, re-upped this commitment when she took office, setting as a goal “[s]trengthening compliance with Project Sunlight across state agencies.” Yet in post-pandemic 2022, Hochul’s executive branch recorded less than 1,850 meetings. This amid allegations of pay-to-play with campaign donors for lucrative no-bid contracts and expedited liquor license application processing.
Hochul’s incompletes on transparency are not earth-shattering. But they are symptoms for the diagnosis. Transparency and accountability in New York will not get better until a governor gets serious about giving attention and resources to the treatment.