The New York Legislature recently passed several open records and open meetings reforms, adding New York to the long list of states that have taken steps to revamp their open government laws this year. Among other changes, the bills would increase electronic access to government records, prevent agencies from denying voluminous records requests, and make it easier for citizens who successfully challenge an open meetings violation to win awards of legal costs and attorneys' fees. The bills await consideration by Governor David A. Paterson before becoming law.
S962, perhaps the most interesting update to the state's open records law, requires an agency to produce a record in the medium requested by the person seeking information, so long as the agency can "reasonably" provide the record in the requested medium or hire an outside service to do it. This reform will make it possible to request more records in electronic -- rather than paper -- format, making it easier for citizens to use electronic means of searching, organizing, and analyzing information.
Another provision of S962 prohibits an agency from refusing a records request on grounds that the request is voluminous or that compliance would be too burdensome, provided that it can engage an outside organization to handle the request. The provision allows the agency to retrieve the costs of hiring an outside service from the person making the request. Because producing records in electronic format will generally be cheaper and easier than doing so on paper, this provision should make it especially difficult for agencies to deny requests for large amounts of information in electronic format.
On the open meetings side, S1599 would make it easier for successful plaintiffs in lawsuits claiming open meetings violations to win legal costs and attorneys' fees. The bill modifies existing law to provide for automatic awards of reasonable costs and fees whenever a public body votes on a measure or resolution in violation of open meetings requirements (i.e., in an improperly closed meeting) or engages in substantial private discussion prior to a vote at an open meeting. A public body can avoid the automatic award if it shows that it had a reasonable basis for believing it was entitled to hold a closed meeting.
Other open government bills awaiting Paterson's signature include:
- S3850, which requires that agencies design their electronic records retrieval methods in a way that allows public information to be separated from information that might be withheld, whenever doing so is "practicable and reasonable." This provision should ease public access to records by making it less likely that sensitive information will stop the release of nearby or related -- but otherwise producible -- information.
- S7944, which requires agencies to maintain an online listing of all records it possesses, arranged by subject heading. Any agency that has a website must post the list to its site, while agencies that don't have websites must arrange to have their lists posted at the Committee on Open Government site.
- S7042, which requires agencies to make records that will be discussed in open meetings available to the public at least 72 hours before the meeting. The provision specifically includes records related to any proposed resolutions, laws, rules, regulations, policies, or amendments that the meeting will address.
Under New York law, Governor Paterson has 10 days from receipt of the bills to sign or veto them. If he does neither, the bills become law without his signature. You can track each bill's progress on the New York State Assembly's website by inputting the bill number (i.e. S7402) into the search field.
For general information on New York's open records and open meetings laws, see our legal guide sections, Access to Public Records in New York and Open Meetings Law in New York. In related news, CMLP intern Jason Crow's recent blog post discussed a bill pending in the New York legislature that would allow the public to photograph, videotape, and audio record public meetings open meetings.
(Matt C. Sanchez is a third-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)