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Government Accountability

Government Accountability

The Zoghlin Group is proud to have a strong track record of bringing claims on behalf of clients related to government accountability. As Justice Louis Brandeis once said, “Sunshine is the best disinfectant.” From services related to Freedom of Information requests and the Open Meetings Law to commencing special proceedings against local governments, county governments, state and federal agencies and beyond.

Freedom of Information Practice Area – State FOIL and Federal FOIA Requests

New York’s Freedom of Information Law (“FOIL”) law aims to promote confidence in government by making non-private agency records accessible to the public.

As local reporting declines and the Internet shifts attention away from local concerns and towards national and global issues, the internal operations of state and local governments have become less transparent. Now more than ever, FOIL offers an important tool for individuals, groups, and businesses to gain access to government records, promote transparency, and provide a check on local power. Likewise, the federal Freedom of Information Act (“FOIA”) grants public access to federal government records, subject to specific exceptions.

FOIL requires state and municipal agencies to maintain records, and grants the public rights to review and copy those records. It also establishes an administrative appeal processes to deal with agency denials of requests for records.

When administrative appeals are denied, members of the public can bring a lawsuit to compel disclosure of government records. State law gives courts the authority to award attorneys’ fees to a plaintiff who successfully brings a court action to force disclosure of withheld records.

Whereas the press and those concerned with government oversight sometimes use FOIL/FOIA to make information public, others use it to obtain evidence in anticipation of litigation, to stay informed about projects that may affect them, or simply to monitor what government agencies are up to.

FOIL Services:

The Zoghlin Group offers are range of FOIL/FOIA related services for those seeking access to agency records, including:

  • Making FOIL Requests:
    • Identifying agencies who may have records related to your project, legal matter, or area of concern;
    • Preparing effective FOIL requests, and following-up on such requests as needed;
  • Reviewing FOIL Responses:
    • Reviewing responses to FOIL requests and disclosures of requested records;
    • Negotiating with agencies to obtain the release of requested materials without litigation;
  • Appealing FOIL Denials:
    • Administratively appealing unreasonable agency denials of FOIL requests;
  • Court Proceedings:
    • commencing and prosecuting Article 78 proceedings to obtain access to requested records when administrative appeals are denied; and

    • Seeking court orders awarding attorneys fees to successful plaintiffs.

Reverse FOIL Services:

Under certain circumstances, where government disclosure would be inappropriate or harmful, we can also help businesses or individuals oppose agency disclosure of requested records, including records containing trade secrets, private materials, or other information protected by state or federal law. These “reverse FOIL” matters often arise when a business is required to disclose certain information to a government entity, and where a third-party attempts to use FOIL to compel the government to disclose that information. In situations such as these, the Zoghlin Group offers the following services:

  • Drafting written demand letters to agencies requesting that materials submitted to such agency, as required by law, be exempt from disclosure under FOIL;
  • Reviewing agency determinations on requested exemptions;
  • Preparing written statements of the necessity for granting or continuing exceptions. This comes up when a government agency notifies a business that someone has sought disclosure of information that the business requested be exempt from disclosure under FOIL;
  • Negotiating with agencies to maintain the confidentiality of exempt materials;
  • Administratively appealing unreasonable denials of requests for exceptions; and
  • Commencing and prosecuting Article 78 proceedings to grant or continue an exception.

We provide FOIL/FOIA related services on an hourly basis and, under certain circumstances, on a flat-fee basis.

Additional information about FOIL is maintained on a New York State website, and is available at: href=“https://www.dos.ny.gov/coog/Right_to_know.html#foil and https://www.dos.ny.gov/coog/pdfs/right2know.pdf

Experience:

-Benjamin Wisniewski, Esq. quoted in FOIL The Law and Future of Public Information in New York (Brett Orzechowski, Syracuse University Press 2018)

Open Meetings Law

The Open Meetings Law aims to promote confidence in government decision-making ensuring that public business is conducted in an “open and public manner.” The law is based on the premise that democratic societies require, for their proper maintenance and functioning, access to public bodies and their decision-making processes. As Justice Louis Brandeis once said, “Sunshine is the best disinfectant.”

With today’s 24-hour news cycle, local governments and politicians have become increasingly concerned that a comment or action will be misinterpreted or taken out of context. Unfortunately, this perception incentivizes those in power to conduct public business behind closed doors, essentially preventing the public from overseeing and observing the conduct of public business.

The Open Meetings Law gives the public the right to attend and observe the meetings of public bodies, with limited exceptions. It also imposes notice requirements on public bodies, and gives the public the right to review materials that are scheduled to be discussed or voted on at the meetings of a public body.

Whereas the press and those concerned with government oversight sometimes rely on the Open Meetings Law to gain access to meetings in order to make information public, others use it to obtain evidence in anticipation of litigation, stay informed about projects that may affect them, or simply to monitor what local municipalities, boards, and other public bodies are up to.

The Zoghlin Group offers are range of services related to New York’s Open Meetings Law for municipalities, individuals, businesses, and citizen groups.

Municipalities:

  • Special Counsel
    • Reviewing municipal, agency, and board rules and counselling agencies on whether such rules comply with the Open Meetings Law.
    • Providing trainings or workshops for new and existing municipal officials on the requirements of the Open Meetings Law.
    • Researching and preparing white papers on specific issues involving the Open Meetings Law.
    • Preparing and submitting requests for advisory opinions to New York State’s Committee On Open Government to obtain clarification on whether past, present, or planned conduct complies with the requirements of the Open Meetings Law.
  • Municipal Defense Counsel
    • Defending municipalities/agencies in lawsuits challenging and/or seeking to annul official actions, resolutions, or approvals for alleged violations of the Open Meetings Law.
    • Defending municipalities/agencies in lawsuits seeking to recover attorneys’ fees for alleged violations of the Open Meetings Law.
    • Negotiating with adverse parties to resolve and settle lawsuits.
    • Appealing adverse court decisions as needed to higher courts.

Individuals, Businesses, And Citizen Groups:

  • Trainings:
    • Provide trainings or workshops on the public’s rights under the Open Meetings Law, and the obligations of municipal boards.
  • Advice:
    • Advising clients on whether past conduct, current rules, or proposed government action(s) violate the Open Meetings Law.
    • Identifying legal options available to address or vindicate potential Open Meetings Law violations.
    • Preparing and submitting requests for advisory opinions to the Committee on Open Government seeking clarification as to whether certain government conduct violates the Open Meetings Law.
  • Civil Actions:
    • Prosecuting Open Meetings Law violations.
    • Negotiating with adverse parties to resolve and settle lawsuits.
    • Pursuing annulment of government actions/approvals taken in violation of the Open Meetings Law.
    • Seeking court orders awarding attorneys’ fees to successful plaintiffs.
    • Appealing adverse court decisions as needed to higher courts.

Decisions:

  • Bridget O’Toole, Esq., Rivers v. Rush-Henrietta Central School District Board of Education, Monroe County Supreme Court Index No. E2020007016 (January 29, 2021) (Holding that the Rush-Henrietta Board of Education violated the Open Meetings Law when it discussed a request to use school facilities for a summer camp in executive session to avoid community push back)
  • Bridget O’Toole, Esq., Appeal of Douglas J. Rivers, NYS Commissioner of Education, Decision No. 17,989 (May 7, 2018) (Holding for the first time that information divulged from an executive session held in violation of the Open Meetings Law is not confidential within the meaning of the Education Law and is not a removeable offense)

Experience:

  • Jacob H. Zoghlin, Esq., Ensuring Local Governments Comply With The Law: An Overview of New York’s Open Meetings Law, Speaker/CLE Presenter at National Business Institute Event, April 5, 2019.
  • Jacob H. Zoghlin, Esq., Navigating Open Meetings Law Compliance Issues, Speaker/CLE Presenter at National Business Institute Event, March 22, 2018.


Litigation

When appropriate, we assist clients in commencing legal actions government actors to hold those actors accountable. This may include:

  • Challenges to State actions that adversely impact the community;
  • Challenges to a municipality’s Local Laws and Code;
  • Challenges to State or municipal actions and determinations;
  • Challenges to and participation in proceedings in connection with the siting, construction or expansion of solid waste facilities;
  • Participation in proceedings in connection with NYISO Interconnection Process and Article VII review process when new energy producing projects seek to connect to a municipal energy system; and
  • Challenges to and participation in proceedings in connection with the siting, construction or expansion of energy producing projects.

For more information about our Government Accountability practice group, or for inquiries related to these practice areas, please contact Bridget O’Toole, Jacob H. Zoghlin, Mindy L. Zoghlin, or Benjamin Wisniewski.

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