New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle A - Governor's Office › Chapter I - Executive Orders › Part 8 - Executive Orders (Andrew M. Cuomo) › Section 8.149 - Executive Order No. 149: Expediting the Foil Process

Current through Register Vol. 46, No. 28, July 10, 2024
WHEREAS, we seek to further transparency and openness in
					 New York State government; and
WHEREAS, the purpose of the Freedom of Information Law
					 (FOIL) is, and has always been, to foster an open and transparent government
					 that all New Yorkers can hold proud; and
WHEREAS, I received two bills pertaining to FOIL from the
					 Legislature; and
WHEREAS, while their goals were well-intended, these bills
					 are seriously flawed and would radically transform the litigation process, are
					 myopic in their scope and focus only on one branch of government, and would
					 only serve to perpetuate a fractured system of transparency and data production
					 by intentionally excluding other branches of government; and
WHEREAS, Assembly Bill 114 has significant technical issues
					 in that it: would substantially alter the balance of appellate rights between
					 state agencies and non-state agency requestors, in that the condensed timeframe
					 would only apply when a state agency appeals an adverse decision, which is
					 necessarily an inequitable outcome, conversely, a non-state agency party would
					 continue to have the longer time periods for appeal that are currently allowed
					 by law; would eliminate judicial discretion regarding the time available to
					 perfect an appeal as permitted by Civil Procedure Law and Rules § 5530(c),
					 which allows each department of the appellate divisions to set their own rules
					 governing the time to perfect an appeal, and/or when an appeal is subject to
					 dismissal for failure to prosecute and/or deemed abandoned; fails to provide
					 for an extension of the 60-day timeframe, even on consent; puts a substantial
					 burden on state agencies to perfect their appeals and may make it difficult for
					 agencies to serve and file appellate records and briefs, possibly compromising
					 a state agency's due process rights; and
WHEREAS, Assembly Bill 1438-B also has significant
					 technical issues in that it: would allow for attorney's fees to be assessed
					 solely against a state agency, rather than uniformly against both parties;
					 would also allow for attorney's fees to be assessed against a state agency,
					 even if the state agency ultimately prevails; would require a trial court to
					 assess attorney's fees against an agency when an agency denies access to FOIL
					 requests in "material violation" of FOIL and with no reasonable basis for
					 denying such access; fails to define what a "material violation" is, allowing
					 each court to define the scope of the term, and leaving litigants without any
					 clarity; and
WHEREAS, these bills fail to include the legislature in any
					 meaningful FOIL reform; and
WHEREAS, I vetoed Assembly Bill 114 and Assembly Bill
					 1438-B for the reasons set forth above; and
WHEREAS, the Executive has and will continue to lead by
					 example in advancing transparency and efficiency in government and, consistent
					 with that principle, will immediately direct state agencies to fast track FOIL
					 appeals, and will introduce legislation that will encompass these issues,
					 address the described flaws, and execute more comprehensive FOIL reform that
					 will cover all branches of state government.
NOW, THEREFORE, I, ANDREW M. CUOMO, Governor of the State
					 of New York, by virtue of the authority vested in me by the Constitution and
					 the Laws of the State of New York, do hereby find that, in light of recent
					 events, we must do more to immediately advance transparency in government.
					 Therefore, pursuant to the authority vested in me by the Constitution of the
					 State of New York and Section 28 of Article 2-B of the Executive Law, I hereby
					 direct all state agencies to adhere to the spirit of Assembly Bill 114, and
					 move post-haste in filing a notice of appeal, settling the record on appeal,
					 and filing a brief, within 60 days, absent extremely complex matters or
					 extraordinary circumstances outside agency control; and
FURTHER, this Order shall take effect immediately and shall
					 remain in effect until further notice.
Signed: Andrew M. Cuomo
Dated: December 12, 2015