Governor Hochul’s office days ago posted updated transparency plans for executive agencies. It’s just in time for Sunshine Week—an annual event to promote open government and access to public information—beginning Monday. They show some improvements since Hochul announced her transparency initiative in October 2021. But there is work left to be done.

Proactive disclosure and improved Freedom of Information Law (FOIL) responsiveness were themes that ran through agency transparency plans in 2021. The Executive Chamber acknowledged then that multiple state agencies had technology needs or staffing shortages that needed to be addressed to help them meet their FOIL and records retention duties.

Technology can help agencies respond to FOIL requests more efficiently. Better response times means better transparency and more accountability.

This report analyzes how well 66 executive branch agencies are using the internet and technology platforms to meet their FOIL obligations (see table below). It evaluates how user-friendly agency websites are for making FOIL requests. And it examines to what extent agencies are using, or not using, technology to make both the agency’s and the public’s FOIL experiences better.

Agency-Level Results: A Survey

The state’s results are mixed, but there are indications the Executive Chamber is guiding agencies in the right direction. The Executive Chamber would best serve New Yorkers by setting some doable FOIL technology goals with hard deadlines for each agency—and then leading by example.

Posting FOIL Information

Starting with the basics, all 66 agencies reviewed have websites. Section 87(4)(c) of FOIL requires an agency with a website to post FOIL information on that website, including contact information for the person responsible for agency FOIL responses, times and places for inspecting and copying records, and how to request information in person, by mail or by e-mail, if an agency accepts FOIL requests electronically. Another provision, FOIL § 89(3)(b) mandates that every entity subject to FOIL, “provided such entity has reasonable means available,” accept requests via email. (It’s 2024—the Legislature should make accepting requests by email mandatory.)

An agency can easily link on its homepage to a FOIL information page. Only three agencies do not place an easily findable FOIL link on their homepages—Energy Research & Development Authority (NYSERDA), Hudson River-Black River Regulating District and Jacob Javits Convention Center. A user at those sites needs to know to click through the “Contact Us” link on their homepages.

The standard location of the FOIL link on the other agency homepages is the bottom of the page. Agencies list FOIL under varying categories but it’s usually found as “Freedom of Information Law (FOIL),” “FOIL,” “Records Request” or “Public Records.” Only one agency—Department of Financial Services—deviates from the state norm. But a user can find the FOIL link on the DFS homepage without too much effort.

Electronic FOIL Requests

As noted above, FOIL  requires agencies to accept records requests via email provided that agency has reasonable means available, which in 2024 should make not accepting requests by email inexcusable. Nine agencies do not provide email addresses on their FOIL information pages. But only one (the Unemployment Insurance Appeal Board) requires a FOIL requester to make the request by mail, fax, or in person.

The nine agencies that do not provide email addresses still accept FOIL requests electronically. Some use the state’s Open FOIL submission form and others use a third-party vendor platform called GovQA.

All but nine of the 66 agencies accept FOIL requests electronically. Those nine agencies are violating FOIL § 89(3)(c), which provides that state agencies that maintain websites accept FOIL requests electronically.

Only one agency does not use Open FOIL or GovQA. The Department of Financial Services has its own portal but plans to transition to GovQA.

Twenty-one agencies use Open FOIL to accept electronic FOIL requests. Open FOIL is a form that collects a requester’s contact information and the FOIL subject matter and records request description for the agency.

Thirty-five agencies use GovQA, which has the same FOIL request functionality as Open FOIL. It also adds features on its platform that make it much more dynamic. Hochul, to her credit, has adopted GovQA for the executive chamber and urged agencies to do the same. Yet most of the agencies using GovQA are not using the platform’s full features to the public’s benefit.

Posting Requested Records

The GovQA technology allows agencies to make its records request archive available to the public, including copies of records it has already disclosed under FOIL requests.

Posting previously filled FOIL requests lets the public access data faster while reducing or eliminating duplicative work for FOIL officers.

Transparency advocates have argued for FOIL request logs or requested records to be published on agency websites. Senator Brad Hoylman-Sigal has introduced a bill requiring agencies to report information about FOIL inquiries to the Committee on Open Government. Yet tracking FOIL metrics should be a best practice for any agency, along with making those results public. The Executive Chamber, committed to transparency, should insist on as much.

Only two of the 35 agencies using GovQA make records available in their request archives—the Adirondack Park Agency and the Gaming Commission. The archive can provide the public with adequate information about the records using the requester’s description:

Twenty other agencies have the function turned on but have not populated their databases. The APA and Gaming Commission only have closed requests and associated records in their databases. Contrast that with the City of Dallas, which maintains a complete and up-to-the-minute database of requests that total more than 47,000 records requests dating back to August 2016.

GovQA also provides a function for posting frequently requested records or trending topics. Twenty-two agencies have that function turned on but only five agencies have populated the database and only four with meaningful information. The Executive Chamber’s “Trending Topic” is a 2022 press release.

Agencies that expand their use of GovQA will need to address how users get to the FOIL archives and frequently requested records on the platform. On most sites the FOIL information link takes users to a landing page with “Submit a FOIL Request” being an active button among other options to make the request by mail, fax or email. A user inclined to one of those options may not click the online submission button to see features available on GovQA. A best practice may be to make the GovQA site the FOIL information landing page with all the information required under FOIL located there.

The Adirondack Park Agency uses its GovQA site as its FOIL information landing page and puts some FOIL information in its FAQ which the agency could expand to meet FOIL’s requirements:

Agencies using GovQA should be able to deploy its features to publish FOIL performance metrics like requests processed and average time to close online. And tracking clicks can help agencies identify frequently requested records to reduce FOIL requests.

New York’s state agencies have the tools available to improve transparency with more efficient FOIL request processing and more proactive disclosure. The Executive Chamber could start by leading from the top and populating its FOIL request archive and posting more frequently requested records online. And every agency should be on GovQA (or a similar service) and maximizing its public-facing capabilities in 2024.

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

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