Litigation Support Policy

The New York Coalition for Open Government is a non-partisan,
non-profit organization dedicated to promoting the people’s right to know
in matters of public interest and the public’s business.

From time to time, the Coalition may need to
initiate or support litigation to further its mission.

Past litigation

Niagara County Lawsuit

Through reports by Mark Scheer of the Niagara Gazette, the Coalition learned that Niagara County refused to provide copies of annual financial disclosure forms completed by county legislators. Niagara County went so far as to pass a local law in 1996 stating their disclosure forms were secret and could not be viewed by the public. The Coalition advised Niagara County that their local law was in violation of the state Freedom of Information Law. We encouraged them to change their law, and they refused, so we sued them with the assistance of the University at Buffalo Law School and won!

Court Documents

Niagara County Memo of Law
Niagara County FOIL Lawsuit Order
Niagara County Complaint

Appellate Advocates v NY State Dept of Corrections

Appellate Advocates submitted a FOIL request to the NYS Department of Corrections seeking among other things training materials presented to the board of parole. Some training materials were produced but others were withheld under FOIL exemptions for intra agency materials and materials protected by attorney client privilege. The Supreme Court sided with the government, holding that the materials were exempt from disclosure.

Our brief with the assistance of the University at Buffalo Law School highlighted that the attorney client privilege should be narrowly applied in the government context and does not cover materials that constitute the working law of the agency. In essence we argued against applying the attorney-client privilege to anything and everything written by an attorney. The Appellate Division did not rule in our favor but two dissenting Justices did support our argument.

Court Documents

Appellate Advocates Brief

How we pick cases

In making a determination to initiate or support litigation, the Coalition wishes to establish certain criteria that will guide it in recommending the commencement or support of any such litigation to the full Coalition Board, which must approve any final decision regarding the commencement or support of litigation. These criteria may include some or all of the following criteria or other criteria that may be relevant to a determination in an individual case:

We weigh a variety of factors when determining whether to become involved in a potential case, but our primary consideration is the potential public interest impact of the case.

The New York Coalition For Open Government will weigh the following factors when considering a request for commencing or supporting litigation:

The case must have a strong legal basis indicating a high likelihood of ultimate success on the merits. Is the case a clear violation and clearly “winnable”? (Cases likely not to be accepted for support include those that are in the gray areas of the law or that are more like local feuds than an open government issue.)

Is the violation of the law serious and continuing despite efforts to bring the public agency or officials into compliance? (Applicants will be asked to document violations and to show what efforts have been made to resolve the issues short of litigation.)

Any judicial decision to result from the litigation must be intended to preserve and protect the rights of ordinary New York citizens to have the fullest access as allowed by law, to the workings of government either through public meetings or public records.

The potential impact of the litigation on the Open Meetings Law or Freedom of Information Law;A significant public interest in the records sought or the Open Meetings Law violation must be present; the Coalition will not advance litigation to further narrow private interests.

The case raises unique legal questions that suggest the case could help resolve existing ambiguities in New York law or further the development in New York law in the areas of access to public records and public meetings.

The local government or agency withholding records has a pattern of abusing New York’s Freedom of Information Law or Open Meetings Law.

The availability of competent counsel to handle the litigation;

The opportunity to support the rights at stake in ways short of litigation, such as by engaging in advocacy, filing amicus briefs, or making public statements on behalf of the Coalition that support the rights without funding litigation;

The availability of others to advocate the same issue.

We are concerned that a particular person would undermine the case or present conflicts with other values, priorities, or relationships;

The resources required to work on the case and whether the work will displace other work that furthers Coalition priorities;

If you have or know of a potential case that might be appropriate for the Coalition’s assistance, please submit a brief email containing your name, address, telephone number, e-mail address, and a summary of the case.

Be sure to make clear who you want to sue, why you want to sue them, what you want to sue them for, when the key events happened, and why you think the case will serve the public interest. Feel free to include any other relevant information and, if possible, identify any imminent deadlines. You can email us your request at the following: paulwolf2@gmail.com.