By: Elias Schmidt
“A free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government.” New York State Freedom of Information Law §84. This quotation opens the Legislative Declaration of the New York State Freedom of Information Law (FOIL). FOIL is a New York statute granting public access to records kept by state agencies in order to promote government transparency and allow for public participation in state government. In June 2020, two citizen activists (Giovanna Righini with Tanya Garment), used FOIL to stand up to government and obtained a precedential opinion that government agencies must continue to release public information during the COVID-19 pandemic.
It has been an honor to serve as a Student Attorney this summer with the University at Buffalo Civil Rights and Transparency Clinic (CRTC). Early this summer, the CRTC assisted Ms. Righini and Ms. Garment. These citizens are members of a volunteer-run group devoted to promoting transparency in local government in Kingston, New York. In April, these citizens submitted a FOIL request to learn more about a plan to promote the wife of the Mayor of Kingston within city government. The request was denied, and the citizens appealed the denial within the time limits set by FOIL. However, the appeal also denied in a letter to the citizens from Kingston’s Assistant Corporation Counsel that was rife with legal misstatements.
The letter from the Assistant Corporation Counsel’s most troubling misstatement purported to extend the time to respond to FOIL requests indefinitely. In his letter, dated April 23, 2020, the Assistant Corporation Counsel stated that, due to Governor Cuomo’s Executive Order 202.8, issued in response to the COVID-19 state of emergency, all deadlines and time limits set forth in FOIL were to be tolled until the executive order was either lifted or modified by the Governor. According to the Assistant Corporation Counsel’s claim, this would mean that the Governor’s executive order would allow government agencies to refuse to meet any FOIL deadlines until after the Governor to lifted or modified the executive order.
Not only would this approach highly inconvenience all individuals submitting FOIL requests, but would also allow for government agencies to take months to even respond to a FOIL request. As a result of the pandemic, Governor Cuomo has repeatedly extended his executive order. The Assistant Corporation Counsel claimed that Kingston had no obligation to process FOIL requests during the pandemic while the executive orders were in effect. Yet, nowhere in the executive order was FOIL mentioned. There was no indication that the Governor’s executive order related to FOIL at all, or that any sort of deadlines besides the tolling of statute of limitations and other time limits relating to court proceedings would be impacted.
In response to the Assistant Corporation Counsel’s letter, the citizens reached out to CRTC with their concerns around the same time that I started my work at the Clinic for the summer. I had just begun learning about FOIL, and knew very little about the role that FOIL plays in government transparency, specifically at a local level.
But I was a Clinic Student Attorney, and as such expected to take a leading role even while learning. When I was asked to lead the initial client interview over Zoom, I was anxious, to say the least. I’d never lead any sort of legal client interview, and now my first one was going to be on a topic I had just learned about. With the help and guidance of Michael Higgins, CRTC’s staff attorney, the interview went off without a hitch and we were able to help the citizens plan how to move forward.
The citizens, with assistance from CRTC, sought an advisory opinion from the New York Department of State Committee on Open Government (COOG) regarding the appeal denial and the Assistant Corporation Counsel’s assertions. COOG is the state agency responsible for overseeing and advising with regard to FOIL, which includes promulgating rules and regulations relative to procedural aspects of FOIL. An advisory opinion is a nonbinding interpretation of law, and states the opinion of the committee on a specific legal question. These opinions are often cited in court decisions and influence the actions of government agencies. In my position as a Student Attorney I was able to provide the necessary assistance to the citizens in writing the request for an advisory opinion. I also provided advice regarding the FOIL process and, most importantly, assisted the residents in determining the steps to take regarding their government transparency concerns following the receipt of COOG’s advisory opinion.
COOG’s response vindicated the citizens’ understanding of the law. The Assistant Corporation Counsel’s claims regarding the impact of Executive Order 202.8 on the FOIL process were incorrect and inconsistent with the language of the executive order. COOG confirmed that Executive Order 202.8 has no effect on the deadlines and time limits required by FOIL. Additionally, none of the executive orders related to COVID-19 have suspended or amended any aspect of FOIL, including any time lines or deadlines. What this means is that government agencies are required to follow standard deadlines for FOIL requests submitted during COVID-19, and Executive Order 202.8 cannot be used by any government agency as an excuse for unreasonable delays in responding to FOIL requests. This advisory opinion is precedent setting, as it clearly states that the deadlines and time limits of FOIL are not impacted by the tolling of the statute of limitations and other time limits relating to court proceedings stated in Executive Order 202.8.
The Kingston residents have since publicized COOG’s response, and are drawing attention to the Assistant Corporation Counsel’s false statements regarding Executive Order 202.8, among other legal misstatements and FOIL issues. Although the documents requested have not yet been produced, these residents are holding their local government officials accountable by exposing non-compliance with the law, are armed with more knowledge about FOIL for the future, and have disseminated an important precedent that will help others get timely responses to their FOIL requests.
This experience has been influential for me, as well. The experiential learning I’ve gained through working on this matter has increased my confidence regarding the FOIL process and has positively informed my knowledge regarding the importance of government transparency and public involvement in local government. I have also become much more confident in my ability to work in a legal capacity as a whole, especially in uncertain and unfamiliar situations … such as from home during the middle of COVID-19. Being able to help these citizens fight for government transparency in the City of Kingston has been a highly rewarding and impactful work, as every law student should know that “[t]he people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society.” FOIL §84.
Name: Elias Schmidt, ’22
Sponsor: The Legal Clinic Fund*
Placement: University at Buffalo School of Law Civil Rights and Transparency Clinic
Location: Buffalo, NY
One important lesson I have learned from this fellowship: “This position has taught me how to put the conceptual skills I learned in class to use in practice. I’ve also learned how to work under unconventional circumstances and how to work under flexible conditions.”
*About the Legal Clinic Fund
The Legal Clinic Fund is a collaborative fund to support the growth and sustainability of legal clinics across the United States that seek to advance and defend first amendment rights, media freedom, and transparency in their communities and nationally. The Fund is generously supported by Democracy Fund, Heising-Simons Foundation, and The Klarman Family Foundation. The Miami Foundation serves as fiscal sponsor for the Fund.