1 September 2021: Cuomo Policy for Blocking Freedom of Information Law Requests Uncovered

FOIL request policy for former Gov. Cuomo uncovered

This report identifies the Cuomo administration policy that "Team Cuomo", Andrew M. Cuomo and high ranking senior officials of the administration, used to block media and watchdog groups from obtaining public data and documents.

An independent Albany think-tank has uncovered a former Cuomo administration policy that barred state agencies from releasing sensitive information to the public until after the governor’s office had approved it.

The Empire Center for Public Policy obtained the Cuomo policy from a 2018 Department of State document. The center said the policy violated the Freedom of Information Law and has “slowed or blocked public information, including data about the coronavirus.”

The policy includes sending sensitive requests for public information to the governor’s office, first, for review within four weeks when the legislature’s goal was five days.

The policy was used by the Cuomo administration to conceal information that would reflect badly on its performance in office.

Cuomo’s “FOIL at a Glance”

This report from the nonpartisan, nonprofit Empire Center for Public Policy describes the procedures that Andrew M. Cuomo's administration used to restrict state government agencies from complying with lawful Freedom of Information Law (FOIL) requests in a reasonable amount of time and, in a number of cases, at all.

The following excerpt describes how the rule worked:

That rule is in an internal Department of State document from 2018, which the Empire Center obtained. This policy violates the spirit if not the letter of the Freedom of Information Law and has slowed or blocked the publication of critical information, including data about the coronavirus pandemic.

The document, titled “Foil at a Glance,” lays out the Cuomo administration’s procedures for handling FOIL requests—including sending “sensitive” requests to the governor’s office for review and approval.

Factors for deciding whether a FOIL request is sensitive included:

• “Is it from a media outlet?”
• “Is it related to something political?”
• “Is it connected to potential legal action against the Department?”
• “Is it non-routine information?”

The DOS document provides timelines for handling sensitive FOIL requests. It establishes a four-week process for getting FOIL responses reviewed and approved by the Executive Chamber before release. The timeline contradicts the Legislature’s goal under FOIL that agencies disclose records within five business days. And it expects agencies to provide a written good excuse for not being able to respond to FOIL requests within five weeks. DOS developed a process for sensitive FOIL requests that intentionally ignores the disclosure deadlines under FOIL to accommodate the Executive Chamber’s approval process.

That's how the Cuomo administration turned the Freedom of Information Act's "five days" to comply into five weeks. But as the Empire Center describes, the Cuomo administration often dragged its heels in complying with FOIL requests for much longer.

Anyone who made a FOIL request to a New York state agency in the Andrew Cuomo era undoubtedly saw some version of the DOS timeline in responses to their FOIL requests. But usually, the DOS four-week timeline was ambitious. In our experience, state agencies answered very few FOIL requests within a month. The usual response to executive agency FOILs was a letter from promising updates on the status of record searches and reviews at regular 30-, 60-, or 90-day intervals.

The policy is a prime example of the commitment of the Cuomo administration to hide behind opaqueness and obstruction rather than to provide transparency into its performance in managing New York's state government.