EDITORIAL: Governor must lift restrictions on document release


State transparency laws are supposed to operate on the basis of a presumption of openness.

But the administration of former Governor Andrew Cuomo approached citizens’ access to government from the exact opposite angle – information belonged to government unless the government deemed it worthy of sharing with the people.

If the new administration of new Governor Kathy Hochul is to keep its promise to make government more open, then one of the policies it has had to reverse since the Cuomo years is one that requires the governor’s office to approve sensitive public records before that they are released by state agencies under the Freedom of Information Act.

According to a 2018 State Department internal memo obtained by the Empire Center, the Cuomo administration placed conditions on the release of certain documents, depending on who requested the documents and the purpose and the potential use of the documents.

According to the memo, the governor’s office should approve the release of documents that appeared to be “sensitive” based on a number of criteria, including whether the request was made by a media outlet (media should not be treated better or worse than any other citizen.), if it was related to a political matter (in Albany, what isn’t?), if it was related to a potential legal action against that ministry (Virtually everything document involving the government may inspire legal action.) and whether the information is “non-routine” (What factors determine whether the information is “routine” or not?).

The memo also established timelines for processing sensitive FOIL requests, according to the Empire Center, that go beyond the standard set by law.

The beauty of FOIL is its simplicity and brevity – if a document does not fall under one of the few very specific exceptions, the law assumes that it must be published.

There is no special provision in FOIL for the governor’s office to establish a separate set of criteria for information dissemination based on a separate set of standards not approved by the legislature.

What the note means is that the governor’s office withheld or delayed the release of information depending on whether the information could be embarrassing or cause problems for officials.

The risk of embarrassment is not a legal reason to withhold documents.

Governor Hochul has pledged to be more transparent. Let’s see her put her money where her mouth is.

It should revoke this memo and demand that all ministries abide by the Freedom of Information Act as drafted and ensure that requests for information are dealt with consistently and in accordance with the letter and to the spirit of the law as it exists.

Anything less than this will show how the new governor really think about transparency.

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