Let’s stop pricing info out of reach

Let’s say a government agency denies your rights. You’ve appealed, but the agency sticks to its position. You’ve reached a point where you can either sue or walk away.

You’re sure a judge would agree that this is an injustice, but here’s “The $64,000 Question” — perhaps literally: Can you afford a lawyer?

You examine your options: If you lose in court, you expect to get stuck with the lawyer’s bill, but if you win, will you still have to pay?

If so, that’s a pretty high admission price for justice — probably tens of thousands of dollars.

If, on the other hand, the law promises that the agency will have to pay your attorney fees if you win, then you know where you stand. You can make your decision based more on the case itself rather than fear of financial ruin.

But what if the law is middling on that point? What if it says the judge “may” make the agency pay your attorney fees and other litigation costs if you win, and if “i. the agency had no reasonable basis for denying access; or ii. the agency failed to respond to a request or appeal within the statutory time.”

That’s currently the case with New York’s Freedom of Information Law, which ensures that citizens can see government documents, with some exceptions. The conditions quoted above are taken directly from the law.

That word “may” is the crux. As a citizen trying to get the government to follow its own law, you don’t know whether you can afford to sue. It may depend on a judge’s whim. Facing such a risk, many wronged people let it drop, and injustice continues.

With such a powerful deterrent in place, state and local government agencies can ignore people’s rights pretty freely. Robert Freeman, head of the state Committee on Open Government, told us he sees it happen all the time throughout New York. Enterprise reporters have seen it happen multiple times in the North Country. This paper can’t afford to have a lawyer on retainer, and state or local government bodies up here know it.

A bill awaiting the governor’s signature would strengthen FOIL by changing that “may” to a must. Bill A2750A would say that if you win your suit “substantially” and if the judge finds that “the agency had no reasonable basis for denying access,” the judge must make the agency pay your attorney fees and and other litigation costs.

The judge would have discretion if you win but not “substantially,” or if you win but the judge thinks the agency had legitimate reason to deny access. Then this bill says the judge “may” make the agency pay your attorney fees.

Both the Assembly and Senate have passed Bill A2750A, and now it’s in Gov. Andrew Cuomo’s hands. We urge him to sign it. Many other newspapers throughout New York have already done so.

FOIL’s opening declaration says, “The 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.” Yet too often public agencies treat open government as an added hassle for them, not a basic right for all of us. Freeman says passing this bill would be “an Aretha Franklin moment,” telling state or local agencies, “You better think — think about what you’re trying to do to me.”

You’ve probably heard the saying, “Justice delayed is justice denied.” That, too, can be a problem with upholding “the people’s right to know,” but there is also this: Justice priced too high is justice denied. America is supposed to ensure “justice for all,” as the Pledge Allegiance promises, not just for those who can afford it.