Permits the assessment of damages for wrongful denial of access to records under the freedom of information law

The above provisions do not abridge or deny any right or remedy available under article eighty-six of the civil practice law and rules.

Justification

The FOIL statute advances the premise that people have a "right to know the process of governmental decision making." This bill enforces such a right by discouraging public agencies from denying public access to records unless a reasonable basis in law exists. The enactment of this bill would provide the court with broader discretionary authority to award fees thereby discouraging public bodies from arbitrarily or capriciously denying public access to records. The bill removes the requirement that the court must decide if a record was "of clearly significant interest to the general public." In several reports to the Governor and the Legislature, the Committee on Open Government recommended that in view of judicial interpretations of FOIL, the condition that the record sought must be of "clearly significant interest to the general public" be removed. The Committee has advocated and the Court of Appeals in

CAPITAL NEWSPAPERS V. BURNS , 67 NY 2d 562 (1986), has confirmed the principle that accessible records should be equally available to any person without consideration to status or interest. It is not relevant with respect to the rights of access whether a record is of clearly significant interest to the general public or only of interest to an individual. Since the FOIL grants access to all records, except those demonstrated by an agency to fall within the purview of the stated exemptions, the only issue raised by an agency in receipt of a FOIL request involves the extent, if any, that the records in question fall within one or more of the grounds for denial. The proposed amendment states as one ground for the awarding of attorney's fees and litigation costs, that the plaintiff must "substantially prevail." This is consistent with the language found under Article 86 of the Civil Practice Law and Rules which provides that fees and expenses may be given to plaintiffs or petitioners who prevail in whole or in substantial part against the state or its officials in a civil proceeding.

Finally, the second provision delineated in the bill (the record is disclosed following the initiation of such proceeding but prior to a judicial determination) is in response to an unreasonable result that occurred in WILLIAM J. KLINE AND SON, INC. V. FALLOWS, 478 NYS 2d 524 (1984). In this case, after the original request for access to records was denied and the denial was upheld on appeal, the applicant sought judicial relief by initiating a costly Article 78 proceeding. The agency disclosed the records before the court heard the arguments. Since the controversy was considered moot, the court found that the petitioner did not prevail and hence, did not award legal fees. It is unfair to preclude an award under such circumstances in view of the expenditures of time and money incurred by an applicant who might otherwise prove that he/she was wrongfully denied access. People should not be forced to spend money and time on judicial proceedings, for example in KLINE, to gain access to records that agencies should have disclosed in the first place.

Prior legislative history

1997: A.228 - (Feldman) Held in Gov. Ops. 1998: A.228 - (Feldman) Held in Rules 1999: A.4153 - Referred to Gov. Ops. 2000: A.4153 - Referred to Rules 2001: A.297 - Rules 2002: A.297 - Gov. Ops. 2003: A.2261 - Gov. Ops. 2004: A.2261 - Rules

Fiscal implications

The long-term effect of this bill should result in savings for the state and local governments. The assessment of attorney's fees and costs against public agencies should encourage them to grant access to public records since denial without a reasonable basis in law could result in an expenditure. Moreover, the assessment of fees and litigation costs under specific circumstances could increase the likelihood of settlements of disputes without court involvement and encourage reliance on the Committee on Open Government for advice or as a mediator in a dispute.

Effective date

The first of September next succeeding the date on which it shall become law.