By Cam McDonald
Courtesy of The Empire Center
Governor Kathy Hochul made news this fall when she used her legislative veto power in a way that looked personal. That’s how Albany watchers and the target, Senator James Skoufis, took it when her first vetoes of 2025 were on bills Skoufis sponsored, including a bill aimed at placing agencies under stricter disclosure deadlines under the Freedom of Information Law (FOIL).
Skoufis called Hochul’s vetoes retaliation for his inquiries into the Hochul administration’s efforts to cut costs under the state’s Consumer Directed Personal Assistance Program, or CDPAP, through a single provider Skoufis alleged to be hand-picked by Hochul’s team. Hochul’s office denied there was anything personal in the vetoes, despite appearances.
Hochul sent mixed signals in her latest round of bill signings and vetoes. Skoufis celebrated getting four bills he sponsored signed into law. But Hochul also vetoed a bill Skoufis sponsored in the Senate that contained an important change to FOIL.
If Hochul let bygones be bygones with Skoufis, then in the long term the FOIL bill vetoes are dispiriting for transparency advocates.
The most recently vetoed FOIL bill addressed decisions by the First Department Appellate Division that limit transparency under FOIL. The court has held that an agency can withhold a public record from disclosure in its entirety if that agency asserts an exception from disclosure for a portion of the record.
The First Department decision misconstrues Court of Appeals precedent that requires agencies to produce redacted records if a privacy exception applies to part of the record, e.g., a social security number or a private citizen’s home address, among others.
The First Department does not apply the Court of Appeal’s redaction rule to other exceptions from disclosure — like information that would “impair present or imminent contract awards,” “interfere with law enforcement investigations,” or “endanger the life or safety of any person,” if disclosed.
A popular exception agencies assert is one for certain “inter-agency or intra-agency materials” that are not factual data or statistics, instructions to staff affecting the public, or final agency policy or determinations. The idea behind this exception for deliberative materials being one to promote the free flow of opinions and thoughts in government agencies that are not chilled by fears of future disclosure under FOIL.
Under the First Department’s decisions, an agency can withhold in its entirety an email that contains one paragraph of opinion or deliberative material in a ten-paragraph narrative, rather than disclose the email with the paragraph subject to the exception redacted. Thus, an agency can withhold an entire record that may be 90 percent facts important to the public because ten percent contains someone’s thoughts or opinions.
Yet even if an agency need not disclose the entire body of an email communication under FOIL, there’s an argument that it still should provide a redacted record. First, the public has a right to know whether a record relating to a topic even exists. And second, the who, when and subject of an email may be as important for the public to know as the email’s contents.
The bill mandated that where an agency may withhold only a portion or portions of a record, the agency may redact such portion(s) but must disclose the remaining portions not subject to any exception from disclosure.
Hochul argued in her veto message that the bill was “unnecessary and duplicative of current law.” But that’s not true. The bill’s language came straight from the Committee on Open Government, which is composed mostly of Hochul administration personnel and gubernatorial appointees, as a direct solution to the problem caused by the First Department’s decisions.
Redacting the portions of records that FOIL does not require to be disclosed is standard practice outside the First Department’s Bronx and New York counties. But the bill was important because the First Department handles FOIL cases involving significant records repositories — most New York City agencies, including the NYPD, and the Metropolitan Transportation Authority.
Hochul’s earlier FOIL bill veto nixed a plan to place agencies under tighter deadlines for responding to FOIL requests. The bill addressed the age-old problem of “information delayed being information denied.” FOIL responses delayed by months or years can be too late to be useful in policy debates or holding public officials accountable.
To be sure, fulfilling records requests promptly can require more resources than agencies typically possess. (Something that more proactive disclosure and better records system management could address.) And Hochul noted in her veto message that the Legislature failed to “allocate additional resources to agencies to ensure they are able to comply.”
Hochul took office in 2021 a new era of greater transparency and accountability. But none of the four executive budgets she since proposed contained meaningful additional resources for agencies to reduce FOIL response delays. And she vetoed a bill aimed at fixing a disclosure loophole identified by her own administration.
With Hochul’s actions speaking louder than her words, New Yorkers who favor greater transparency may have preferred the Skoufis FOIL bill vetoes to be personal and not more business as usual.
Cameron J. “Cam” Macdonald is General Counsel for the Empire Center and Legal Director for the Government Justice Center.