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					                             STATE OF NEW YORK
                             DEPARTMENT OF STATE
                             COMMITTEE ON OPEN GOVERNMENT

                             __________________________________________________________________

Committee Members
                                                               One Commerce Plaza, 99 W ashington Ave., Suite 650, Albany, New York 12231
                                                                                                                            (518) 474-2518
Tedra L. Cobb                                                                                                          Fax (518) 474-1927
Lorraine A. Cortés-Vázquez                                          W ebsite Address: http://www.dos.state.ny.us/coog/index.html
John C . Egan
Robert Hermann
Robert L. M egna
Garry Pierre-Pierre
Richard Ravitch
Clifford Richner
David A. Schulz
Robert T. Simmelkjaer II

Executive Director

 Robert J. Freeman




                                 REPORT TO THE GOVERNOR
                                         AND THE
                                    STATE LEGISLATURE
                                           2009


                             BUILDING A CULTURE OF OPENNESS
                                           AND
                                IMPROVING TRANSPARENCY

                        “Knowledge will forever govern ignorance, and a people who
                        mean to be their own governors, must arm themselves with the
                        power knowledge gives. A popular government without
                        popular information or the means of acquiring it, is but a
                        prologue to a farce or tragedy or perhaps both.”
                                                    - - James Madison, August 4, 1822



                        “Information is the currency of democracy.”
                                                   - - Unknown
                                     EXECUTIVE SUMMARY

• The role of the Committee on Open Government: advancing openness and informed public
   discourse through the optimal usage of the Freedom of Information and Open Meetings Laws


• Highlights of 2009

    - Honored Pulitzer Prize Winner Mark Mahoney
    - Prohibited disclosure of social security numbers
    - Amendments to the Open Meetings and Personal Privacy Protection Laws
    - Government Law and Policy Journal
    - FOIL Saves Money
    - International Consultation
    - Symposium - “E-FOIL Issues of Access in the Digital Age” and a Special Report


• Key Legislative Priorities
    - Proactive Disclosure: Require important records to be publicly available online
    - Expedite appeals in FOIL litigation
    - Create sanctions for knowing and willful violations of the Open Meetings Law
    - Require public access to records discussed during open meetings


• Additional Legislative Proposals

    - Mandatory award of attorney’s fees under FOIL
    - Apply FOIL and the Open Meetings Law to the Commission on Public Integrity
    - Authorize reasonable use of cameras in the courts
    - Confer authority to disclose 911 records
    - Require confidentiality as to the identities of the victims of sex offenses
    - Payment of attorney’s fees to government agencies in unsuccessful efforts to block disclosure
        by private parties
    - Improve procedure regarding requests for confidentiality of trade secrets
     Every state in the United States has enacted open records and open meetings laws, but few have
created agencies that provide guidance regarding those laws. The Committee on Open Government,
initially named the Committee on Public Access to Records, was created as part of New York’s
Freedom of Information Law (“FOIL”) in 1974. The Committee was given the authority to provide
advice and opinions pertaining to the Open Meetings Law in 1977, as well as a similar function with
the enactment of the Personal Privacy Protection Law in 1984.

     As indicated later in this report in the section involving services rendered by the Committee, it
is clear that the Committee has become a source of guidance sought by representatives of state and
local government, the public, the news media, academia, and foreign governments. Key to the
survival and success of the Committee is its independence. It has established a reputation for
expertise and impartiality, and its three person staff responds annually to thousands of inquiries,
prepares hundreds of advisory legal opinions and engages in scores of presentations and training
programs.

The Basis of the Law: A Presumption of Access
     The first version of the Freedom of Information Law was repealed and replaced with a new law
whose structure remains intact today. In short, FOIL is based on a presumption of access. State and
local government agencies are required to disclose their records, unless one or more exceptions to
rights of access listed in the law can properly be asserted. In general, the exceptions are based on
the potential for harm as a consequence of disclosure. For example, harm might involve disclosure
resulting in an unwarranted invasion of personal privacy, the inability of the government to carry out
its duties effectively on behalf of the public, or injury to the competitive position of a commercial
enterprise. Similarly, meetings of public bodies subject to the Open Meetings Law must be held
open to the public, unless there is a basis for entry into executive session, a portion of a meeting
during which the public may be excluded. Discomfort and embarrassment do not constitute
appropriate grounds for denying access to government information.


                                     HIGHLIGHTS OF 2009

Hosting Pulitzer Prize Winner Mark Mahoney
    The Committee celebrated the winner of the 2009 Pulitzer Prize for editorial writing, Mark
Mahoney of the Glens Falls Post-Star by inviting him to speak at the Committee’s June meeting.
Mr. Mahoney created a blog at the Post-Star focusing on open government issues, and the comments
received and the activities of local governments in the region led him to author a series of editorials
dealing directly with compliance with the Freedom of Information and Open Meetings Laws. The
Committee and others who attended the meeting were inspired by Mr. Mahoney’s outstanding work.

Legislation regarding Social Security Numbers
    Beginning January 1, 2010, state and local government agencies will be prohibited from
intentionally disclosing social security numbers. The courts and county clerks are exempt from the
requirements of the new law with respect to records filed prior to January 1, 2010; however, on
request, county clerks will be required to redact social security numbers from such records made
available online.

Amendments to the Open Meetings Law and Personal Privacy Protection Law
    The Open Meetings Law was amended to require that public bodies post notice of their meetings
online in advance of meetings when they have the ability to do so. Also, in a manner consistent with
FOIL, the Personal Privacy Protection Law was amended to enable individuals who request records
pertaining to themselves from state agencies to do so via email.
                                                -2-


Government Law and Policy Journal - Open Government Issue
    Robert Freeman and Camille Jobin-Davis, respectively the Committee’s Executive Director and
Assistant Director, served as co-editors of the spring edition of the Government Law and Policy
Journal, a publication of the New York State Bar Association Committee on Attorneys in Public
Service and the Government Law Center of Albany Law School. The Journal included commentar-
ies by attorneys representing government agencies required to comply with FOIL and the Open
Meetings Law, as well as users of those laws, including the editor of a daily newspaper. Both
Freeman and Jobin-Davis also prepared articles for the Journal.

FOIL Saves Money
    In the previous four reports, we referred to situations in which the use of FOIL resulted in
disclosures that saved the taxpayers millions. Disclosures in 2009 continue to prove the point.
Many New Yorkers have learned that attorneys retained by school districts improperly received
pensions or health insurance benefits. The disclosures emanated from a single FOIL request by a
Newsday reporter, which, with the assistance of Committee staff, led to many more. The Albany
Times Union reported last month that the Attorney General’s office has “recovered $2 million from
70 people who received improper pensions.” The disclosures also led to passage of legislation
barring the practices that permitted the improper payments and expenditures to be made.

International Consultation
     Because the Committee is one of the few of its kind in the nation, staff is frequently contacted
for the purpose of sharing its experience with government officials, scholars and representatives of
the news media from the world over. In 2009, staff met with individuals interested in FOI from
Kenya, Japan, Indonesia, Argentina, Mexico, Ghana, Spain and Poland.

Symposium: E-FOIL: Issues of Access in the Digital Age
        to be the Subject of a Supplemental Report
    Developments in information technology coupled with amendments to FOIL enacted last year
have created new issues. FOIL has since 1978 required that an applicant must “reasonably describe”
the records sought, and in 1986, the Court of Appeals held that the requirement is met when an
agency has the ability to locate and identify requested records, irrespective of the volume of the
material that can be found (Konigsberg v. Coughlin, 68 NY2d 245). Today, however, due to
advances in technology, requests have been made, particularly for email communications pertaining
to a named individual or subject, that has led to the identification and retrieval of thousands of
records. Review of those records to determine the extent to which they must be disclosed is time
consuming and, therefore, costly.

    In an effort to bring together representatives of government agencies that have dealt with onerous
requests involving records maintained electronically, those who have made the requests, experts in
information technology, and Miriam Nisbet, President Obama’s appointee to the newly created
position of Director of the Office of Government Information Services as its keynote speaker, a
symposium was held on E-FOIL issues on December 4 at the Albany Law School. The Symposium
was developed by the Committee and the Law School’s Government Law Center, and joining them
as co-sponsors of the event were the New York State Bar Association’s Committee on Attorneys in
Public Service and its Municipal Law Section.

    To digest the expertise and ideas shared during the Symposium in a thoughtful and deliberate
manner, and to offer recommendations designed to preserve the intent and integrity of FOIL while
concurrently recognizing the burdens imposed upon government agencies, we have refrained from
offering specific proposals in this report. Our intent, however, is to present the Governor and the
Legislature with recommendations prepared to achieve those goals early in 2010.
                                                 -3-


                            LEGISLATIVE PRIORITIES FOR 2010

Proactive Disclosure

                            Recommendation: Require that Certain Records
                            be Posted Online


   The world and the means by which we communicate and share information are rapidly changing,
and the internet can and should be used to help citizens figure out what is going on in their
communities and judge how their government is performing.

    In a memorandum sent to the heads of federal agencies regarding the federal FOI Act one day
after taking the oath of office, President Obama emphasized the Act’s “presumption in favor of
disclosure” and directed that the presumption “also means that agencies should take affirmative steps
to make information public”, adding that “They should not wait for specific requests from the
public” and “should use modern technology to inform citizens about what is known and done by
their Government” in a timely manner.

    The President’s directive represents the essence of proactive disclosure: using modern
technology to make records available to the public electronically on its own initiative.

     The advantages of proactive disclosure are obvious. The public can gain access to information
of importance quickly, easily, and at no cost; the government, by anticipating interest in certain
information, eliminates the need to engage in the administrative tasks associated with receiving
requests for records, locating the records, making them available after producing photocopies,
printouts, or downloading information onto a computer tape or disk, calculating and collecting a fee
for copying and finally, putting documents in the mail. In short, a requirement to engage in proactive
disclosure would result in cost savings to both the public and the government. By disclosing data
in ease to use formats, the public can create new sites and applications in ways that government
agencies have never considered. Proactive disclosure can spur innovation, creativity and economic
development.

    Examples of records that might be required by such an amendment would be agendas and
minutes of meetings, agencies’ most recent audits, agency contracts that may involve matters of
public interest or importance, budget information, names of licensees or permit holders, recipients
of governmental grants, and the like. Posting databases online can enable citizens to avoid areas of
high crime, to find sidewalk cafes, property values, street cleaning schedules - numerous items of
information that can enable the public to be safer, to enjoy greater convenience and to enrich their
lives. Through relevant and timely disclosure, the relationship between the public and government
can be strengthened, and the goal of achieving greater transparency enhanced.

    The Committee urges the Governor and the Legislature to amend FOIL by requiring agencies,
when they have the ability to do so without undue burden or cost, to post on their websites, records
that are clearly public and frequently requested or to require agencies to provide links on their
websites to facilitate access to those records.

Recognizing that Access Delayed is Access Denied: Expediting Appeals in FOIL Litigation

                 Recommendation: Expedite Appeals in FOIL Litigation

    Recent amendments provide the courts with wider discretionary authority to award attorney’s
fees to persons denied access to records due to a failure to comply with FOIL or closing meetings
in violation of the Open Meetings Law. However, most members of the public are reluctant to
challenge even clear violations of law, and on average, less than one suit per county is initiated under
                                                 -4-


FOIL annually. Initiating a judicial proceeding involves time and money, and merely a possibility,
but not a guarantee, that there will be an award of attorney’s fees.

    In circumstances in which delays in decision making create unfairness or a restriction of rights,
the law includes an expedited process for determining appeals. Because access delayed is often the
equivalent of access denied, we recommend that FOIL be amended.

    If a denial of a request for records is overturned by a court, an agency may file a notice of appeal
and take up to nine months to perfect the appeal. Such delay is unacceptable. When the process of
appealing begins, there is a statutory stay of the court’s judgment that remains in effect until the
appeal is determined by the Appellate Division.

    The Committee recommends that FOIL be amended as follows:

               §89(4)(d) Appeal to the appellate division of the supreme court must
               be made in accordance with law, and must be filed within thirty days
               after service by a party upon the appellant of a copy of the judgment
               or order appealed from and written notice of its entry. An appeal
               taken from an order of the court requiring disclosure of any or all
               records sought shall be given preference, shall be brought on for
               argument on such terms and conditions as the presiding justice may
               direct upon application of any party to the proceeding, and shall be
               deemed abandoned when an agency fails to serve and file a record
               and brief within forty-five days after the date of the notice of appeal.

       The enactment of this proposal would encourage agencies to comply with law and save the
taxpayers’ money through the creation of judicial precedent that negates the necessity of initiating
lawsuits. We note that the language of this proposal has been introduced in the Senate (S. 6134a)
and the Assembly (A. 6484).

Strengthening the Open Meetings Law


       Recommendation: Authorize Courts to Invalidate Action When Deliberations
       Occurred in Secret in Violation of Law


“It is essential to the maintenance of a democratic society that the public business be performed in
an open and public manner and that the citizens of this state be fully aware of and able to observe
the performance of public officials and attend and listen to the deliberations and decisions that go
into the making of public policy.”
                                - - Legislative declaration, New York Open Meetings Law

        Most public bodies attempt to comply with the Open Meetings Law and generally do so, but
numerous instances arise in which discussions occur in private that should have been held in public.
The law requires that a public body approve a motion in public, citing a reason, before it may enter
into an executive session. Frequently, while the reason may be valid, the body may drift into a new
subject. The discussion of a topic that should have been discussed in public is never heard. In other
circumstances, public bodies enter into executive session without any valid basis for so doing. In any
of those situations, information that may be critical to the public may be lost forever.

        Earlier this year, the Governor vetoed A.2046A/S.3453, which, if approved, would have
given a court the discretionary authority to invalidate any action in whole or in part “when that
action, or substantial deliberations relating thereto, was taken or held in violation” of the Open
Meetings Law. The bill would also have authorized a court to “impose a civil penalty of up to five
hundred dollars payable by each public body engaged in such violation.”
                                                  -5-


        In his veto message, the Governor wrote that “the proposed civil penalty is highly
problematic in that the public body itself would be liable, and the ultimate price would be paid by
the taxpayer”, adding that “It is difficult to see how the public benefits from this penalty, or how it
would serve as a deterrent...”

        He also indicated that the term “substantial deliberations” is undefined and could subject
small “localities to additional lawsuits over this statute.”

         We note that there are thousands of public bodies subject to the Open Meetings Law and that,
on average, five lawsuits are initiated annually challenging alleged violations of that statute. In short,
litigation brought under the Open Meetings Law is rare.

         We agree that a fine payable by a public body would not provide an incentive to comply.
That being so, and in consideration of the Governor’s contention, we recommend the language of
the bill vetoed by the Governor be revised as follows:

                “In any such action or proceeding, if a court determines that action
                was taken by a public body (a) in violation of this article, or (b), in
                executive session without full compliance with sections one hundred
                five, subdivision one or one hundred eight, the court shall have the
                power, in its discretion, upon good cause shown, to [declare any
                action or part thereof, taken in violation of this article void in whole
                or in part] declare that the public body acted in violation of law
                and/or declare the action void, in whole or in part, without prejudice
                to a reconsideration in compliance with this article. In addition, if the
                court determines that a public body has knowingly and willfully taken
                action in violation of this article, it may in its discretion require the
                members of the public body to participate in a training session on the
                obligations imposed by this article conducted by the staff of the
                committee on open government. In cases involving repeat offenses
                by a public body, the court may in its discretion impose civil
                sanctions upon each member of the public body, except a member or
                members who demonstrated opposition to private discussion or
                action, in an amount of one-hundred dollars.”

Records Discussed at Meetings

      Recommendation: Records discussed at open meetings should generally be
      available prior to or at meetings


        Often a public body will review and discuss a particular record at an open meeting, but the
record is not available or distributed to people attending the meeting. For instance, a board in
reviewing its expenditures might refer to an item appearing on "page 3, line 6". While that
information is referenced at a meeting, the public may be unaware of the contents of the record that
is the subject of the discussion. Therefore, although the meeting is open, the public is unable to
know what the discussion specifically concerns.

        In addition, there are occasions when public access to a record may be denied under the
FOIL, but that discussion of the record must be conducted during an open meeting. For instance,
if a school superintendent writes a memorandum suggesting changes in policy, the memorandum
may be considered advisory. Therefore, it could be withheld under the FOIL [§87(2)(g)].
Nevertheless, when the school board initiates a discussion of proposed policy changes, there would
be no basis for entry into an executive session.
                                                -6-


       To enhance the public's right to observe the decision-making process and to make the Open
Meetings Law more meaningful, it has been recommended that many of the records scheduled to be
discussed or presented at open meetings be available to the public prior to or at a meeting.

        Although the Senate and the Assembly approved legislation that would have achieved that
goal, it was vetoed by former Governor Spitzer due to the burdens that could be imposed upon
agencies, particularly in relation to time constraints.

        In an effort to meet those objections, the Committee offers a revised proposal to amend §103
of the Open Meetings Law by adding the following new subdivision:

              “(d) Agency records available to the public pursuant to article six of
              this chapter, as well as any proposed resolution, law, rule, regulation,
              policy or any amendment thereto, that are scheduled to be the subject
              of discussion by a public body during an open meeting shall be made
              available, to the extent practicable, prior to or at the meeting during
              which such records will be discussed. Such records shall be posted on
              the website of the agency with which the public body is affiliated, as
              soon as practicable, but not less than 24 hours prior to a meeting
              during which they will be discussed, and a reasonable number of
              copies of such records shall be made available, to the extent practica-
              ble, at or prior to the meeting.”

The foregoing language was introduced in the Senate as S. 7565A.
                                                 -7-


                         ADDITIONAL LEGISLATIVE PROPOSALS

Mandatory Award of Attorney’s Fees Under FOIL


          Recommendation: Mandatory Award of Attorney’s Fees Under FOIL

       The advisory opinions rendered by the Committee are persuasive and serve to educate and
encourage compliance with open government laws, but they do not guarantee compliance.

        The FOIL provides a court with discretionary authority to award attorney’s fees in a lawsuit
brought under FOIL. When a person denied access substantially prevails and the court determines
that the agency had no reasonable basis for denying access or failed to comply with the time
limitations for responding to requests or appeals, a court may order an award.

       The Committee recommends that the award of attorney’s fees be mandatory, not discretionary,
when a court finds the conditions described to be present.

The Public Employees Reform Act/Commission on Public Integrity

      Recommendation: Records and meetings of the Commission on Public Integrity
      should be subject to FOIL and the Open Meetings Law


        The “Public Employee Ethics Reform Act of 2007", formerly known as the Ethics in
Government Act ("the Act"), establishes strong ethical standards concerning the conduct of public
officials. The Act is intended to ensure that the public has confidence in those who govern.

        Unlike the FOIL or the Open Meetings Law, both of which are based on a presumption of
openness, the opposite presumption exists in the Act. Unquestionably, there are good and valid
reasons for withholding records or closing meetings when issues arise concerning the conduct of
particular public officers and employees. If the FOIL and the Open Meetings Law fully applied to the
Commission, it would have the capacity to restrict access to records or close meetings in a manner
that provides the Commission with the protection it needs to carry out its duties effectively. Ethics
boards and committees at the local government level are subject to open government laws, and they
function effectively by protecting privacy as appropriate and enhancing the accountability of
government. The records and meetings of the Commission on Public Integrity are, however, exempt
from both FOIL and the Open Meetings Law.

       Subdivision (17) of §94 of the Executive Law states that, notwithstanding the provisions of
the FOIL, only certain enumerated records of the Commission on Public Integrity are accessible to
the public. Similarly, paragraph (b) states that meetings and proceedings of the Commission are not
subject to the Open Meetings Law. Based on the principles underlying the FOIL and the Open
Meetings Law, the Committee on Open Government recommends that the records and meetings of
the Commission on Public Integrity be subject to those laws.

Cameras in the Courts

               Recommendation: Authorize reasonable use of cameras

       Judicial decisions indicate that any person may video record open meetings of public bodies,
so long as the use of the recording equipment is neither disruptive nor obtrusive [see e.g., Csorny v.
Shoreham-Wading River Central School District, 305 AD2d 83 (2003)]. Although the Open
Meetings Law excludes the courts from its coverage, in the spirit of openness, transparency and the
                                                 -8-


need to provide the public with the means to know of the operation and functions of its critical
institutions, the Committee reaffirms it support for the concept of the authority to use cameras in the
courtroom, subject to reasonable restrictions considerate of the needs of witnesses.

       It is ironic that New York, the media capital of the world, continues to resist the use of
technology to bring judicial proceedings into our homes and classrooms.


                        BALANCING PRIVACY AND ACCESS
“E911" Records

        Recommendation: Disclose or withhold E911 records pursuant to FOIL.


          E911 is the term used to describe an “enhanced” 911 emergency system. Using that system,
the recipient of the emergency call has the ability to know the phone number used to make the call
and the location from which the call was made. A section of County Law prohibits the disclosure of
records of E911 calls. However, that statute is either unknown to many law enforcement officials,
or it is ignored. Soon after the Lake George tour boat sank and twenty people died, transcripts of 911
calls were published. While those who made the emergency calls were not identified, the disclosure
of the transcripts clearly violated existing law.

        The Committee recommends that subdivision (4) of §308 of the County Law be repealed. By
bringing records of 911 calls within the coverage of FOIL, they can be made available by law
enforcement officials when disclosure would enhance their functions, to the individuals who made
the calls, and to the public in instances in which there is no valid basis for denying access. When
there are good reasons for denying access, to prevent unwarranted invasions of personal privacy, to
protect victims of or witnesses to crimes, to preclude interference with a law enforcement
investigation, FOIL clearly provides grounds for withholding the records.

       We note that the County Law does not apply to New York City, which has for years granted
or denied access to records of 911 calls as appropriate based on FOIL.

Sex Offenses

   Recommendation: Ensure that privacy of victims of sex offenses, not that of
   defendants, is protected


        Section 50-b pertains to victims of sex offenses, and subdivision (1) of that statute provides
that:

               "The identity of any victim of a sex offense, as defined in article one
               hundred thirty or section 255.25, 255.26 or 255.27 of the penal law, or
               an offense involving the alleged transmission of the human immuno-
               deficiency virus, shall be confidential. No report, paper, picture,
               photograph, court file or other documents, in the custody or possession
               of any public officer or employee, which identifies such a victim shall
               be made available for public inspection. No such public officer or
               employee shall disclose any portion of any police report, court file, or
               other document, which tends to identify such a victim except as
               provided in subdivision two of this section."
                                                  -9-


        The intent of §50-b is obvious -- that the government should not permit disclosures of records
that would identify victims of sex offenses. Nevertheless, the language of §50-b is so broad that any
record containing the name or other identifier pertaining to a victim must be withheld [see Fappiano
v. New York City Police Department [95 NY2d 738 (2001)]. As a consequence, while victims'
identities have been protected, so have the identities of defendants.

         Although the Committee believes that §50-b is well-intentioned, it should not be used as a
shield against disclosure of all information relating to the alleged commission of a sex offense, and
it certainly should not be used to protect defendants. We recommend that §50-b of the Civil Rights
Law be clarified to confer confidentiality only to the extent that disclosure would identify or tend to
identify a victim of a sex offense. Governmental entities should have the ability to make appropriate
deletions or redactions to protect the victims of sex offenses, while concurrently having the ability
to disclose the remainder of the records. That statute should be amended as follows:

               "The identity of any victim of a sex offense, as defined in article one
               hundred thirty or section 255.25, 255.26 or 255.27 of the penal law, or
               an offense involving the alleged transmission of the human immuno-
               deficiency virus, shall be confidential. No public officer or employee
               shall disclose any portion of any police report, court file, or other
               document, which tends to identify such a victim except as provided in
               subdivision two of this section."

       In addition, §50-c of the Civil Rights Law states that:

               "Private right of action. If the identity of the victim of a sex offense
               defined in subdivision one of section fifty-b of this article is disclosed
               in violation of such section, any person injured by such disclosure may
               bring an action to recover damages suffered by reason of such
               wrongful disclosure. In any action brought under this section, the
               court may award reasonable attorney's fees to a prevailing plaintiff."

Due to the breadth and vagueness of the language quoted above, public officials have been reluctant
to disclose any information concerning sex offenses for fear of being sued. The modifications
proposed above would clearly authorize disclosure, but without identifying details pertaining to
victims.

         Finally, §50-c refers to any disclosure made in violation of §50-b, whether the disclosure is
intentional or otherwise, inadvertent, or made after the victim's identity has been disclosed by other
means. There should be standards that specify the circumstances under which a disclosure permits
the initiation of litigation to recover damages.

       Based on the foregoing, we recommend that §50-c be amended to state that:

               "Private right of action. If the identity of the victim of a sex offense
               is intentionally or in a grossly irresponsible manner disclosed in
               violation of section fifty-b of this article, and has not otherwise been
               disclosed, such victim [any person injured by such disclosure] may
               bring an action to recover damages suffered by reason of such
               wrongful disclosure. In any action brought under this section, the
               court may award reasonable attorney's fees to a prevailing plaintiff."
                                                 - 10 -


                             TECHNICAL IMPROVEMENTS
Inappropriate Denials of Access: A Recommendation for Relief for the Taxpayer

   Recommendation: An unsuccessful proceeding to stop disclosure should require
   payment of attorney’s fees to the agency


        Section 89(5) of the FOIL concerning disclosures that would cause substantial injury to the
competitive position of a commercial enterprise serves as the only instance in which a person or entity
may attempt to prevent a government agency from disclosing records, even when the agency believes
that the records must be disclosed. In that situation, the person or entity may initiate a judicial
proceeding to block disclosure, and the government agency will be a party to the proceeding. In those
cases, the agency will be required to expend government resources and public money.

        If the person or entity initiates a judicial proceeding and fails to meet the burden of proof by
demonstrating that disclosure would result in the harm described in one or more of the exceptions to
rights of access, the government agency and the taxpayers it serves should not be penalized
financially. On the contrary, the person or entity seeking to prevent disclosure should be required to
reimburse the government for any litigation or associated costs.

        To achieve that goal, the Committee recommends that a new paragraph (i) be added to §89(5)
as follows:

               “In any proceeding commenced to review an adverse determination
               pursuant to paragraph (c) of this subdivision in which the person or
               entity initiating such proceeding fails to substantially prevail by
               proving that the records at issue may properly be withheld from the
               public, the court in such proceeding shall direct such person or entity
               to remit to the agency involved reasonable attorney’s fees and other
               litigation costs reasonably incurred by the agency.”

Streamlining Trade Secret Protection Procedure

   Recommendation: Require a commercial enterprise to periodically renew its request
   that records be kept confidential.


       The FOIL includes unique and innovative provisions concerning the treatment of records
required to be submitted to a state agency by a commercial enterprise pursuant to law or regulation.
They are intended to provide a procedural framework for consideration of the so-called "trade secret"
exception to rights of access.

       Section 87(2)(d) of FOIL permits an agency to withhold records to the extent that they:

               "are trade secrets or are submitted to an agency by a commercial
               enterprise or derived from information obtained from a commercial
               enterprise and which if disclosed would cause substantial injury to the
               competitive position of the subject enterprise..."

        Under §89(5) of FOIL, a commercial enterprise that is required to submit records to a state
agency may, at the time of submission, identify those portions of the records that it believes would
fall within the scope of the exception. If the agency accepts the submitter's contention, those aspects
of the records are kept confidential. If and when a request for the records is made under the Freedom
                                                  - 11 -


of Information Law, the agency is obliged to contact the submitter to indicate that a request has been
made and to enable the firm to explain why it continues to believe that disclosure would cause
substantial injury to its competitive position. If the agency agrees with the submitter's claim, the
person requesting the records has the right to appeal the denial of access. If the determination to deny
access is sustained, the applicant for the records may seek judicial review, in which case the agency
bears the burden of proof. However, if the agency does not agree that disclosure would cause
substantial injury to the firm's competitive position, the firm may appeal. If that appeal is denied, the
submitter has fifteen days to initiate a judicial proceeding to block disclosure. In such a case, the
submitter has the burden of proof.

        The request for confidentiality remains in effect without expiration, unless and until an agency
seeks to disclose on its own initiative or until a FOIL request is made. Because there is no expiration,
agencies are required to implement the procedure in §89(5), often years after a request for
confidentiality was made.

      To streamline the procedure and reduce the burden on state agencies, §89(5) should be
amended as follows:
               5. (a) (1) A person acting pursuant to law or regulation who,
               subsequent to the effective date of this subdivision, submits any
               information to any state agency may, at the time of submission,
               request that the agency tentatively except such information from
               disclosure under paragraph (d) of subdivision two of section eighty-
               seven of this article. Where the request itself contains information
               which if disclosed would defeat the purpose for which the exception
               is sought, such information shall also be tentatively excepted from
               disclosure.

                 (1-a) A person or entity who submits or otherwise makes available
               any records to any agency, may, at any time, identify those records or
               portions thereof that may contain critical infrastructure information,
               and request that the agency that maintains such records tentatively
               except such information from disclosure under subdivision two of
               section eighty-seven of this article. Where the request itself contains
               information which if disclosed would defeat the purpose for which the
               exception is sought, such information shall also be tentatively
               excepted from disclosure.

                 (2) The request for an exception shall be in writing, shall specifically
               identify which portions of the record are the subject of the request for
               exception and shall state the reasons why the information should be
               tentatively excepted from disclosure. Any such request for an
               exception shall be effective for a three-year period from the agency’s
               receipt thereof. Provided, however, that not less than sixty days prior
               to the expiration of the then current term of the exception request, the
               submitter may apply to the agency for a two-year extension of its
               exception request. Upon timely receipt of a request for an extension
               of an exception request, an agency may either (A) perform a review
               of the application and grant the extension should it find any justifica-
               tion for such determination, or (B) commence the procedure set forth
               in paragraph (b) of this subsection to make a final determination
               granting or terminating such exception.

                 (3) Information submitted as provided in subparagraphs one and
               one-a of this paragraph shall be tentatively excepted from disclosure
               and be maintained apart by the agency from all other records until the
               expiration of the submitter’s exception request or fifteen days after the
                                 - 12 -


entitlement to such exception has been finally determined or such
further time as ordered by a court of competent jurisdiction.

  (b) During the effective period of an exception request under this
subdivision, [O]on the initiative of the agency at any time, or upon the
request of any person for a record excepted from disclosure pursuant
to this subdivision, the agency shall:

   (1) inform the person who requested the exception of the agency's
intention to determine whether such exception should be granted or
continued;

  (2) permit the person who requested the exception, within ten
business days of receipt of notification from the agency, to submit a
written statement of the necessity for the granting or continuation of
such exception;
   (3) within seven business days of receipt of such written statement,
or within seven business days of the expiration of the period pre-
scribed for submission of such statement, issue a written determina-
tion granting, continuing or terminating such exception and stating the
reasons therefor; copies of such determination shall be served upon the
person, if any, requesting the record, the person who requested the
exception, and the committee on open government [public access to
records].

 (c) A denial of an exception from disclosure under paragraph (b) of
this subdivision may be appealed by the person submitting the
information and a denial of access to the record may be appealed by
the person requesting the record in accordance with this subdivision:

   (1) Within seven business days of receipt of written notice denying
the request, the person may file a written appeal from the determina-
tion of the agency with the head of the agency, the chief executive
officer or governing body or their designated representatives.

  (2) The appeal shall be determined within ten business days of the
receipt of the appeal. Written notice of the determination shall be
served upon the person, if any, requesting the record, the person who
requested the exception and the committee on open government
[public access to records]. The notice shall contain a statement of the
reasons for the determination.

 (d) A proceeding to review an adverse determination pursuant to
paragraph (c) of this subdivision may be commenced pursuant to
article seventy-eight of the civil practice law and rules. Such proceed-
ing, when brought by a person seeking an exception from disclosure
pursuant to this subdivision, must be commenced within fifteen days
of the service of the written notice containing the adverse determina-
tion provided for in subparagraph two of paragraph (c) of this
subdivision.

 (e) The person requesting an exception from disclosure pursuant to
this subdivision shall in all proceedings have the burden of proving
entitlement to the exception.
                                  - 13 -


 (f) Where the agency denies access to a record pursuant to [para-
graph (d) of] paragraph (b) of this subdivision in conjunction with
subdivision two of section eighty-seven of this article, the agency shall
have the burden of proving that the record falls within the provisions
of such exception.

   (g) Nothing in this subdivision shall be construed to deny any
person access, pursuant to the remaining provisions of this article, to
any record or part excepted from disclosure upon the express written
consent of the person who had requested the exception.

  (h) As used in this subdivision the term "agency" or "state agency"
means only a state department, board, bureau, division, council or
office and any public corporation the majority of whose members are
appointed by the governor.”
                                                 - 14 -


                SERVICES RENDERED BY THE COMMITTEE

                                6,356 TELEPHONE INQUIRIES
                            591 WRITTEN ADVISORY OPINIONS
                                     3.2 MILLION “HITS”
                                     89 PRESENTATIONS
                                   3,500 PEOPLE TRAINED


        The Committee on Open Government offers advice and guidance orally and in writing to the
public, representatives of state and local government, and to members of the news media. During the
past year, with its staff of three, the Committee responded to nearly 6,500 telephone inquiries and
prepared 591 written advisory opinions. Nearly half of the telephone inquiries came from state and
local government officials; approximately 32 percent came from the public and 17 percent from the
news media. Based on its reputation for fairness, impartiality and expertise, it is clear that the
government, the public and news media rely on the Committee on Open Government as a source of
guidance. In addition, the staff gave 89 presentations, before government and news media
organizations, on campus and in public forums, training thousands of persons concerning public
access to government information.


               USE OF THE COMMITTEE’S WEBSITE: 3.2 MILLION HITS
         Six years ago, when it was initiated, the Committee’s website received approximately 122,000
hits. In 2005, we reported that the website received a million hits. During the past year, the website
received more than 3.2 million hits. We believe that suggests that many have a desire and need to
know about their rights of access to government information in relation to their private lives, and that
the Committee on Open Government has become a source of information vital to thousands of New
Yorkers and others.

        Since its creation in 1974, the Committee has prepared more than 22,500 written advisory
opinions in response to inquiries made regarding New York's open government laws. The opinions
prepared since early 1993 that have educational or precedential value are identified by means of a
series of key phrases in separate indices prepared in relation to the Freedom of Information Law and
the Open Meetings Law. The full text of those opinions is now available through the website. Each
index to advisory opinions is updated periodically to ensure that interested persons and government
agencies have the ability to obtain opinions recently rendered.

       In addition to the text of open government statutes, the advisory opinions and the indices to
opinions, the website also includes:

       – model forms for email requests and responses
       – the regulations promulgated by the Committee (21 NYCRR Part 1401);
       – "Your Right to Know", a guide to the Freedom of Information and Open Meetings
               Laws that includes sample letters of request and appeal;
       – “You Should Know”, which describes the Personal Privacy Protection Law;
       – An educational video concerning Freedom of Information and Open Meetings Laws
               consisting of 27 independently accessible subject areas;
       – responses to "FAQ's" (frequently asked questions);
       – the Committee's latest annual report to the Governor and the State Legislature; and
       – “Issues of Interest”, which describe developments in the law of wide interest.
                                                 - 15 -


Continuing Legal Education
        Attorneys are now required to engage in Continuing Legal Education (CLE) as a means of
sustaining their licenses to practice law. The Director of the Committee has taught a number of CLE
courses for which attorneys gain credit toward reaching their requirements and has been certified as
a CLE provider. As a provider offering credit at no charge, he has taught courses for hundreds of
state and municipal attorneys, as well as other than government attorneys, thereby saving taxpayers
thousands of dollars.

Other Services
       Another method of disseminating information has involved the publication of informational
materials. For instance, a fifteen page brochure entitled "Your Right to Know" has been extremely
popular, and the Committee has distributed more than three quarters of a million copies of that
brochure in its current and prior versions. In addition, "You Should Know", which describes the
Personal Privacy Protection Law, has been widely disseminated.
        The Committee prepares and posts on its website a supplement to the annual report. The
supplement includes summaries of judicial decisions rendered by the courts under FOIL (Appendix
1) and the Open Meetings Law (Appendix 2).


STATISTICAL SUMMARY

                                    6,356 Telephone Inquiries
                                  591 Written Advisory Opinions
        Since 1980, the staff, at the direction of the Committee, has kept logs regarding telephone
inquiries. In an effort to identify the users of the Committee's services, the logs have characterized
callers as members of the public, state agency officials, local government officials, state legislators,
commercial interests, and members of the news media. A similar breakdown is developed with
respect to requests for written advisory opinions.

        From November 1, 2008 through October 31, 2009, the staff of the Committee prepared 591
written advisory opinions. With respect to telephone inquiries, the number for the period November
1, 2008 through October 31, 2009 was 6,356.

Statistics - FOIL

                                  453 Written Advisory Opinions
       Among the opinions, the total by group is as follows:

              Members of the Public                              327            (72%)
              Local Government Officials                          63            (14%)
              Members of the News Media                           38           (8.5%)
              State Agency Officials                              24            (5%)
              State Legislators                                    1            (.5%)
                                                - 16 -


                                    4,601 Telephone Inquiries
       The profile among those callers is as follows:

              Members of the Public                            1,539          (33%)
              Local Government Officials                       1,748          (38%)
              Members of the News Media                         770           (17%)
              State Agency Officials                            450           (10%)
              State Legislators                                  94            (2%)

       It is noted that the patterns of inquiries in terms of numbers from the groups identified above
have been generally consistent during recent years.

                                  Statistics - Open Meetings Law
                                  136 Written Advisory Opinions

              Members of the Public                              85           (63%)
              Local Government Officials                         41           (31%)
              Members of the News Media                          5             (3%)
              State Agency Officials                             5             (3%)
              State Legislators                                  0             (0%)


                                    1,578 Telephone Inquiries

              Members of the Public                             473           (30%)
              Local Government Officials                        644           (41%)
              Members of the News Media                         296          (18.5%)
              State Agency Officials                            104           (6.5%)
              State Legislators                                  61            (4%)

        As suggested at the outset, government officials are frequent users of the Committee’s
services, and in 2008, the greatest number of inquiries regarding the Open Meetings Law came from
local government officials.


                          Statistics - Personal Privacy Protection Law
       Advisory services were also rendered in connection with the Personal Privacy Protection Law.
Two written advisory opinions were prepared at the request of members of the public. With respect
to the 177 oral inquiries made concerning the Personal Privacy Protection Law, the following
breakdown has emerged:
                                                - 17 -


                                       177 Telephone Inquiries

              Members of the Public                              49           (28%)
              Local Government Officials                         11            (6%)
              Members of the News Media                          20          (11.5%)
              State Agency Officials                             84          (47.5%)
              State Legislators                                  13            (7%)


                         Combined Figures Regarding the Three Laws
        Viewing the statistics shown above regarding the three statutes within the Committee's
jurisdiction, the 591 written advisory opinions prepared from November 1, 2008 through October 31,
2009, may be grouped as follows:

                                  591 Written Advisory Opinions

              Members of the Public                              413          (70%)
              Local Government Officials                         105         (17.5%)
              Members of the News Media                          43          (7.25%)
              State Agency Officials                             29            (5%)
              State Legislators                                   1           (.25%)


                                    6,356 Telephone Inquiries

              Members of the Public                            2,061         (32.5%)
              Local Government Officials                       2,403          (38%)
              Members of the News Media                        1,086          (17%)
              State Agency Officials                             638          (10%)
              State Legislators                                  168          (2.5%)

        As noted in previous reports, many more inquiries are made regarding the FOIL than the Open
Meetings Law. From the Committee's perspective, the reason is clear. In short, state and local
government maintain thousands of different types of records. Those records may be the subjects of
rights of access under the FOIL Law and numerous other provisions of law.

        Under the Open Meetings Law, due to the structure of the Law and its application, the breadth
of the variety of the questions raised is not as significant as those that might arise under the FOIL.
Further, particularly with respect to state government, many state agencies fall outside the scope of
the Open Meetings Law, for they are headed by executives rather than public bodies.
                                                - 18 -


                                    PRESENTATIONS

              EDUCATING THE PUBLIC AND GOVERNMENT OFFICIALS

        An important aspect of the Committee’s work involves efforts to educate by means of
seminars, workshops and various public presentations. During the past year, the staff gave 89
presentations, which are identified below by interest group during the period of November 1, 2008
through October of 2009. Approximately 3,500 individuals received training during those
presentations. In addition, countless others benefitted from the use of the Committee’s training video
online, as well as materials posted on the website.

Addresses were given before the following groups associated with government:

- - Electronic Records Symposium sponsored by State Archives, Ithaca
- - Council on Governmental Ethics Laws, Chicago
- - Law enforcement officials training sponsored by Town of Poughkeepsie
- - Cornell Cooperative Extension program for newly elected officials, Albany
- - NYS Association of Counties, Albany
- - Training, Town/Village of Ossining,
- - NYS Association of Towns (2 presentations, CLE)
- - Tug Hill Leadership Conference, Remsen
- - NYS Charter Schools Association, New York City
- - Local Government Conference, Watertown
- - Regional Leadership Conference sponsored by State Archives, Ithaca
- - NYS Association of Fire Districts, Albany
- - NY Association of Local Government Records Officers, Utica
- - NY Government Finance Officers Association, Albany
- - NYS Division of the Budget, training
- - NYS Association of Town Clerks, Rochester
- - City of Rome, workshop
- - NYS Association of Local Government Records Officers, training (CLE), New York City
- - NYS Association of Clerks of County Legislators, Watkins Glen
- - Long Island Library Association, Huntington
- - Oneida County Association of Towns, Vernon
- - NY Association of Local Government Records Officers, training (CLE), New York City
- - NY Conference of Mayors (2 presentations, CLE), Saratoga Springs
- - Training for state agency attorneys and records access officers (CLE), Albany
- - Nassau County Association of Water Districts, Brookville
- - NYS School Boards Association, new member training, Lake Placid
- - NYS School Boards Association, new member training, Albany
- - NYS School Boards Association, new member training, Ithaca
- - Erie County Association of Town Clerks, Evans
- - Onondaga Association of Town Clerks, Manlius
- - Association of Fire Districts, Ellenville
- - Columbia County Assessors, Ghent
- - NYS School Boards Association, New York City
- - Local Government Conference, Potsdam
- - Rockland County (CLE), training

Addresses were given before the following groups associated with the news media:

- - Schenectady Gazette
- - Legislative Gazette, Albany
- - Binghamton Press & Sun Bulletin
                                             - 19 -


- - New York Press Association, Albany (2 presentations)
- - Channel 8, Rochester, workshop
- - Newsday, Melville
- - Plattsburgh Press-Republican
- - Deadline Club, New York City
- - Legislative Gazette, Albany

Presentations for students include:

- - Ithaca College, Park School of Journalism
- - SUNY/Albany
- - CUNY Graduate School of Journalism
- - SUNY/Oswego
- - Capital area high school journalism students, Albany
- - SUNY/Albany, Graduate School of Information Science and Policy
- - SUNY/Albany, Graduate School of Public Administration
- - International students, Fulbright scholars, Albany
- - SUNY/Binghamton, Graduate School of Public Administration
- - SUNY/Albany
- - Albany Law School, ethics course
- - SUNY/Albany, information science
- - Students Inside Albany, sponsored by League of Women Voters
- - CUNY Graduate School of Journalism
- - Syracuse University, Maxwell School of Public Administration
- - SUNY Albany, Information Science
- - St. Rose College, Journalism, Albany

Other presentations include:

- - International Conference on Access to Information, San Luis Potosi, Mexico
- - Nassau County Bar Association (CLE), Municipal Law Section, Mineola
- - Schenectady County Bar Association (CLE), Schenectady
- - Public forum sponsored by Village of Monticello
- - Television program with Assemblyman Latimer
- - Suffolk County Bar Association (CLE), Education Law Section, Hauppauge
- - Interview program, WOR radio, New York City
- - Monroe County Bar Association (CLE), Rochester
- - Public Forum sponsored by Spring Valley Public Library
- - Onondaga County Bar Association (CLE), Syracuse
- - National Public Radio Sunshine Week interview
- - International Visitors Leadership Program with Polish Delegation, Albany
- - SUNY Center for International Development/Program for Ghanian officials, Albany
- - Videoconference sponsored by US Dept. of State, representatives of Jalisco, Mexico, NYC
- - Rotary Club, Bethlehem
- - Public forum sponsored by Town of Greenburgh
- - Public Forum sponsored by Yates Progressives, Penn Yan
- - Television program with Assemblymember Paulin
- - Public forum sponsored by Madison County news media, Cazenovia
- - Rotary Club, Plattsburgh
- - Public forum sponsored by Plattsburgh Press-Republican
- - Public forum sponsored by Town of Greenburgh
- - International Center of the Capital District, program for Japanese officials
- - NY Civil Liberties Union, training (CLE), New York City
- - Public forum sponsored by Oswego County School Boards Association, Central Square
                                                  - 20 -


         USE OF THE PERSONAL PRIVACY PROTECTION LAW
         The Personal Privacy Protection Law, which applies to state agencies, includes principles of
fair information practices. Under the law, persons who are the subjects of records maintained by state
agencies generally have rights of access to records about themselves, as well as the right to challenge
the accuracy of those records. In order to protect privacy, agencies can collect only those items of
personal information that they need in order to carry out their legal duties, and they are prohibited
from disclosing personal information, unless the law specifically authorizes disclosure.

        The Personal Privacy Protection Law has been in effect for twenty-five years. In its effort to
ensure proper implementation of the Law, the Committee prepared model regulations for use by state
agencies. In addition, model guidelines concerning the Law have been distributed. For the use of the
public and government, "You Should Know", a non-technical guide to the Law, has been widely
disseminated. Written advisory opinions have also been prepared, and they are referenced in
Appendix 1 of the supplement in relation to several key phrases pertaining to the Personal Privacy
Protection Law.
        The Law requires that state agencies report to the Committee with respect to the number of
requests made under the Personal Privacy Protection Law and the agencies' determinations. For
purposes of reporting, many agency officials asked whether their reports should refer to all requests
by individuals for records pertaining to them, or only to those requests that specifically refer to the
Personal Privacy Protection Law. It was advised that only the formal requests be reported. A total
of 50 agencies reported, and 3,040 requests were made. Among the requests, 2,971 were granted, and
69 requests were denied in whole or in part. In addition, no requests were made to amend or correct
records.

        The figures may be somewhat misleading in gauging the impact of access laws. For example,
people have often asked how many requests are made under the Freedom of Information Law. Our
response has always been that it is difficult, if not impossible to know, for records are often made
routinely available in response to informal, oral requests. The Committee believes that many records
have become readily available due to the existence of access laws and agencies' familiarity with those
laws gained over a period of years. In short, it is our view that records in general, as well as records
accessible only to the individuals to whom they pertain under the Personal Privacy Protection Law,
are often made available without resort to a formal request.

        It is noted that the greatest percentage of the oral inquiries directed to the Committee regarding
the Personal Privacy Protection Law involved state agency officials seeking to comply with the Law.
Furthermore, in many agencies, particular individuals have been designated to deal with both the
Freedom of Information and Personal Privacy Protection Laws. Those individuals and the staff of
the Committee have developed good working relationships, and the result is a network of "access
professionals" having expertise with respect to both statutes who can serve the public well.