2006-02-24 / Columnists

It’s My Turn

Robert Freeman Executive Director NYS Committee On Open Government

There is no doubt that a cost is incurred by government agencies when they must locate, review and make records available following requests made under the Freedom of Information Law (“FOIL”). But it is equally clear that disclosures through the use of FOIL save taxpayers millions of dollars — far more than the cost of implementing the law.

To illustrate, in July, the New York Times published articles concerning fraud and abuse in the Medicaid program, reporting that:

“Though the program is a vital resource for 4.2 million poor people who rely on it for their health care, a yearlong investigation by The Times found that the program has been misspending billions of dollars annually because of fraud, waste and profiteering. A computer analysis of several million records obtained under the state Freedom of Information Law revealed numerous indications of fraud and abuse that the state had never looked into.” (July 18, 2005) Just two days later, the Times wrote that:

“Governor George E. Pataki yesterday ordered a broad overhaul of the state agencies that protect Medicaid from fraud and abuse, creating an independent inspector general’s office and bringing in a former federal prosecutor to help reorganize the policing of the program, which is New York State’s largest expense.” (July 20, 2005)

The designation of an inspector general coupled with better government oversight will result in less fraud and waste. Just as important, when Medicaid providers know that the government is watching, they will be less likely to cheat. Disclosure, even the possibility of disclosure, will save taxpayers’ money. Assuming the moneys paid by Medicaid involving “fraud, waste and profiteering” run into the millions, the use of FOIL by the Times, the publication of its findings, and the remedial action taken by state agencies will save taxpayers millions of dollars over the course of years. Another example of the use of FOIL to save taxpayers’ money involves the abuse of E-Z Pass. An editorial published in the Albany Times-Union stated that:

“With the state scrambling to close a $4 billion budget gap, coming up with $3.4 million in uncollected E-ZPass Thruway tolls might seem like small potatoes. So, too, might the nearly $20 million in fines that Thruway Authority officials are owed by motorists.

“But to borrow from a famous saying by the late Senator Everett Dirksen, a million here, a million there, and pretty soon it adds up to real money.”

Soon after the Times-Union articles appeared, the Thruway Authority announced that it retained a collection agency to recover the uncollected tolls and fines. Even if a quarter of the total is eventually collected, taxpayers will gain more than $5 million through the use of the FOIL.

When government agencies solicit bids for the purchase of goods and services and a potential bidder uses the FOIL to obtain the current contract involving the purchase of similar items and submits a new competitive bid for the upcoming purchase, he can offer the agency a better deal. Considering the purchases by counties, cities, towns, school districts and state agencies, taxpayers realize untold savings due to disclosures under the FOIL that likely involve millions of dollars each year.

FOIL has real value, as does its companion, the Open Meetings Law. The latter requires that meetings of government bodies be conducted in public, unless there is a basis for entry into an executive session. Both laws are based on a presumption of access, stating that all records and meetings must be open to the public, unless an exception to openness can properly be asserted.

The Open Meetings Law provides a unique opportunity for the public to observe elected and appointed officials and gain insight into the decision making process. Additionally, it offers a means of knowing where those officials stand and the potential to affect the course of government.

Both FOIL and the Open Meetings Law include enforcement provisions. However, the teeth in those statutes are clearly baby teeth. While the Governor and the State Legislature are applauded for strengthening the FOIL last year by imposing more specific time limits upon agencies to grant access to records, that legislation serves as an initial step in improving the law. Our experience indicates that the new provisions aid in compliance in a timely manner, but there remain too many instances in which agencies unreasonably delay disclosure.

The legal remedy for challenging an agency’s action or non-action involves bringing a lawsuit, but doing that involves too much time and money to be reasonable for most people. Further, although there is a possibility that a court may award attorney’s fees to a person challenging a denial of access, the likelihood of an award is remote.

The mechanisms that encourage compliance are provisions requiring responses to requests within prescribed time limits, a first step that has been accomplished, and those which enable the public to use the courts effectively. Guaranteeing the award of attorney’s fees when agencies fail to respond in a timely fashion or deny access without any real justification would be a welcome and long overdue second step.

Legislation has been introduced in the Assembly (A. 9661) that would require a court to award attorney’s fees to a successful plaintiff when it is clear that the agency failed to comply with law. Similarly, legislation (A. 8008) would make an award of attorney’s fees mandatory when a court has found that a government body has violated the Open Meetings Law by deliberating or taking action in private in violation of law. The certainty of an award of attorney’s fees in a proceeding in which the court finds that substantial deliberations were conducted in private in violation of law would serve as a significant and meaningful deterrent.

Both bills should be enacted, for they would give open government laws real teeth, making them more useful and meaningful to every resident of NY.

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