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LIPA to change proposed FOIL rules after lawmaker criticism

State Assemb. Steve Englebright (D-Suffolk) speaks in Stony

State Assemb. Steve Englebright (D-Suffolk) speaks in Stony Brook on Dec. 9, 2019. Credit: Randee Daddona

LIPA has agreed to a series of changes to newly proposed rules for accessing the authority's internal documents after alarms were raised by state lawmakers.

LIPA has agreed to adjust an initial set of proposals that lawmakers feared could "diminish the ability of the public to obtain access to records of the authority." That means that LIPA trustees won't be able to vote on the new rules until after year's end.

A Long Island Power Authority attorney, during a public hearing last month, had described the originally proposed changes as largely "housekeeping" in nature, and suggested making the changes following the hearing and a vote by its board this month.

But on Nov. 30, Assemb. Steven Englebright (D-Setauket), in letter to LIPA signed by 10 state lawmakers, objected to the changes, saying they went beyond housekeeping and could limit some access to information and the ease and cost by which customers get access to LIPA’s records. Englebright and Assemb. Charles Lavine (D-Glen Cove) also asked LIPA for clarification about a claim during the public hearing that new language meant only certain PSEG Long Island records would now be subject to the Freedom of Information Law.

The lawmakers’ letter said elements of the altered rules appeared "contrary to both the spirit of FOIL and the plain language of the Public Officers Law and the Committee on Open Government."

For one, they said, the new rules would require that a record request could only be made in person at LIPA’s offices and only if the requesting party scheduled an appointment in advance with LIPA’s records officer. The letter charged that is directly in opposition to Committee on Open Government rules that agencies such as LIPA must accept requests to access records during "all hours" they are open for business, and allow for written requests to arrange an appointment.

The letter also criticized LIPA’s proposed fee changes for FOIL documents as "ambiguous," noting state law provides for fees for electronic records only if emailed documents require more than two hours of staff time. LIPA’s rules proposed fees for paper records not readily available in digital format, but don’t specify whether LIPA will charge fees for digital records. LIPA's rule changes do say a customer requesting his or her own records would not be charged for them.

The letter takes issue with LIPA's plan to delete sections of its FOIL rules in favor of state rules, particularly relating to trade secrets. The Assembly members noted that LIPA as a state agency is required by law to "promulgate rules and regulations" for document requests relating to trade secrets. It noted LIPA previously understood its requirement to maintain its own trade secret rules, when it last updated the rules in 2000.

The Assembly members noted that LIPA’s current rules require those seeking to withhold certain trade information to address "important considerations" in making the request, including which portion of a document is to be kept secret and for how long. Losing that language, they said, "would make it easier to conceal information from the public."

LIPA in a response said it was "committed to the public’s right to know about our operations," among other aspects of its business, and reiterated the changes amounted to "good housekeeping."

"The changes were not intended to limit the public’s right to know or easy access to information," said LIPA chief executive Tom Falcone in the letter.

Nevertheless, LIPA said it would rescind its proposal to repeal its trade-secret rules and leave its prior rules in place "to avoid any ambiguity."

LIPA also agreed to delete the requirement that members of the public schedule an appointment to submit FOIL requests in person and "added clarifying language that the three methods of submitting FOIL requests (in person, internet, mail) are each alternatives available to the public."

Newsday forwarded the original Assembly letter to the state Committee on Open Government, which in a two-page response concurred with the finding that the need to schedule an appointment to make a request in person "may be inconsistent" with its regulations. And while it found LIPA’s proposed changes for charging fees appeared to comport with state regulations, it said LIPA was "obligated to maintain" its own trade-secret FOIL rules in compliance with the law.

LIPA had hoped, after making the changes, to put the new rules up for a vote at its Dec. 15 board meeting, but Englebright and Assemb. Charles Lavine (D-Oyster Bay) said state law requires that LIPA must withdraw the proposal and begin anew.

"LIPA has noted Gov. Hochul’s directive to state agencies and authorities to increase transparency and accessibility to state operations, but failing to reject a rule filed to evade the procedures for public notice and comment would set a precedent that would be highly detrimental to her goal," Englebright and Lavine wrote.

Falcone in a letter to Englebright and Lavine on Thursday said it would "withdraw these proposals and refile" and conduct a second public hearing on them.

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