With a promise of transparency as her “hallmark,” Gov. Hochul has far to go to ensure truly open Government in New York

By Progress New York Staff

Despite a promise to make Government transparency a “hallmark” of her administration, Gov. Kathleen Hochul (D-NY) is keeping mum about revelations that the New York State Committee on Open Government does not track Government Agencies’ compliance with the State’s open records law.

On 25 August, Gov. Hochul joined the MSNBC talk show, “Morning Joe,” for an interview about her approach to governance. It was the day after her remarkable rise to the governorship after Gov. Andrew Cuomo (D-NY) resigned following the conclusion of a New York State Attorney General’s investigation into allegations of sexual harassment. In seeking to break with the series of controversies during the Cuomo administration, Gov. Hochul promised to open the functions of Government.

“Transparency will be the hallmark of my administration,” Gov. Hochul told talk show host Joseph Scarborough during the MSNBC interview.

Two weeks before Gov. Hochul made a promise of transparency, Progress New York filed a request under the State’s Freedom of Information Law, or FOIL, for records showing whether Government bodies were complying with the State’s open records law. To be able to make that determination, Progress New York sought records about appeals made by the makers of FOIL Requests that had been denied and the determinations in respect of those appeals made by the Government bodies that were the subject of the FOIL Requests. Appeals and their corresponding determinations are required to be forwarded to the Committee on Open Government by law. However, in an exchange of e-mail between Progress New York and the Committee on Open Government over the FOIL Request, the Government transparency authority admitted that they don’t track whether appeals are upheld or overturned. As a result, the Committee on Open Government does not document the success rate at which appeals lead to the release of at least some additional Government records. The lack of tracking flies in the face of the Committee on Open Government’s statutory role to oversee FOIL and to report back annually to the State Legislature.

On the same day as her MSNBC interview, Gov. Hochul recognised in her first COVID-19 update an additional 12,000 Coronavirus deaths that had been previously denied by the Cuomo administration, according to a report published by POLITICO. Former Gov. Cuomo had stirred controversy, open records litigation, and a reported Federal inquiry over the incomplete reporting of COVID-19 deaths in nursing homes.

Gov. Hochul has also taken other steps to make it appear that she is moving to improve transparency. For example, the Hochul administration reportedly gave the heads of New York State Agencies until 20 October to propose changes that they will authorise to “increase the transparency” of their work, according to a report published by the Buffalo News. Although the administration’s directive suggested improving response times to open records requests made under FOIL, the Hochul administration is ignoring the fact that the Committee on Open Government doesn’t track Agencies’ compliance with FOIL.

Furthermore, some of the worst reported violations of Government transparency don’t always happen at the State level of Government, even though it is State law that governs State and Local Government transparency. Mayor Bill de Blasio (WFP-New York City) has a long history of delaying the release of open records, but his reported abuses of FOIL would not be subject to Gov. Hochul’s latest efforts to improve transparency at State Agencies.

Multiple requests made to the Governor’s Office by Progress New York for an interview for this report went unanswered.

For so long, Government reform activists have been questioning why more corporate and political corruption are not exposed by the mass media, a belief that was validated during testimony delivered in September 2013 before the now-defunct Moreland Commission, when then-U.S. Attorney Preet Bharara said, in part, that the “press have a role to play” in fighting corruption. But that role is thwarted when open records requests are denied or prolonged unnecessarily in violation of the law with no consequence to the Government.

Gov. Hochul’s promise for more Government transparency failed an early test when she negotiated in advance the agenda of a recent special session of the State Legislature, where the State’s open meetings laws was amended. That special session took place under “secrecy rules,” leaving “the public, and many legislators,” in the dark about the Government’s business, according to the Buffalo News report.

It shouldn’t take more time to improve Government transparency, since the secrecy of large economic development projects allowed corruption to take root in Government programmes from Manhattan to Albany to Syracuse to Buffalo under the former Cuomo administration. And the Hochul administration is already acknowledging obstacles.

Progress New York was informed that the Committee on Open Government does not possess copies of the records that are the subjects of the FOIL Requests that get appealed to it for further determination, which can be seen as reasonable, on the one hand, since the volume of records being sought can sometimes be very large. But, on the other hand, a log or database containing basic information about open records requests could easily be extended to document the Government’s compliance with open records laws without requiring redundant productions of records. With Gov. Hochul running away, at least for now, from establishing clear benchmarks at the Committee on Open Government, it’s too early to see how her promises for greater transparency will change the culture that allows political expediency to undermine open and democratic Government functions across New York State.

In respect of the FOIL Request filed by Progress New York, the Committee on Open Government has admitted that there was a “large volume of records that are responsive” to the request. As a result, the Committee on Open Government estimated that an electronic copy of the records will be provided to Progress New York by 4 March 2022.

Due to a compromise in security, this report was recovered and republished on 13 October 2021.