Close the Gaps In Open Government Law

This edition of The Star arrives during Sunshine Week, a once-a-year effort by the journalism profession to focus attention on the continual struggle for open government. Unfortunately, the last 12 months have not been good ones for the cause. Notable problems include the revelation that Hillary Clinton used a personal email server for official messages as secretary of state and may have destroyed important records.

In Albany, news that many, if not most, state employees’ email messages are to be automatically destroyed after 90 days angered critics. Gov. Andrew Cuomo is said to be reconsidering that directive, but 52 state organizations are reported to have already upgraded and consolidated emails into one new cloud-based system that permanently carries out the 90-day deletion policy.

Locally, compliance with the Freedom of Information Law is spotty, with requests from the public often languishing unfilled and overly expansive closed meetings the norm. Elected officials, from fire department commissioners to those in the nation’s capital, should do better. The White House requires that emails be retained for seven years.

In New York State, the law on official meetings and document access are a mixed bag, confirming the concept that government must operate on a presumption of openness but failing to impose penalties for noncompliance. This leaves the courts as a recourse for the news media and interested citizens, which may be too expensive or too daunting — and don’t doubt that local officials and their legal advisers know that.

For those who are unfamiliar with how it works, New York’s open government law covers two general areas. One concerns meetings by elected or appointed boards and basically means that any time a majority of a voting body gathers anywhere, for any purpose, it constitutes a meeting that the public is able to attend and at which minutes must be taken.

Limited exemptions allow for private strategy sessions during litigation or discussion of certain personnel matters, but these are roundly and frequently abused. Moreover, closed-door sessions themselves are supposed to be part of regularly convened public meetings, at which a majority must vote to close the doors and offer reasons why. This means that regularly scheduled executive sessions are really an oxymoron because they skirt these requirements, though we see them all the time.

The other realm of the state’s open government law involves records, basically anything at all, whether on paper or in an electronic form. With very limited exceptions, more or less any communication created or received by a government official is public and can be requested. But therein lies the problem: Many officials know there is little to no personal risk if they fail to comply and they sometimes do so so slowly that the information sought loses its value. Undermining this is the fact that state legislators’ records are not subject to this law; they should lead by example, as should the governor.

Reform is needed and must come from Albany. Points to be addressed include improving the appeals process when a document request is denied and putting an immediate halt to the 90-day automatic email purges. Better and more forceful limits on closed-door meetings would also be a help, as would efforts to inform elected officials and staff about what the law requires. But it also means that the public needs to figuratively pound on those closed doors and demand those records that should be available.

Citizens’ awareness of government is a fundamental part of a free society. Officials, whether through ill intent or simple ignorance of the law, cannot be allowed to block the people’s right to know.