Relates to freedom of information requests and attorneys' fees

Title of bill

An act to amend the public officers law, in relation to freedom of information requests and attorneys' fees

Purpose

To require the court to issue reasonable attorneys' fees when an agency denies access to freedom of information requests and the party has substantially prevailed, unless the court finds that the position of such agency was substantially justified or that special circumstances make such assessment unjust; or if the agency failed to respond to a request or appeal within the statutory time, unless the court finds that the agency provided substantive evidence of inability to comply.

Summary of provisions

Section 1 provides that the court shall award attorneys' fees when a party substantially prevails, unless the court finds that the position of such agency was substantially justified or that special circumstances make such assessment unjust; or if the agency failed to respond to a request or appeal within the statutory time, unless the court finds that the agency provided substantive evidence of inability to comply.

Section 2 provides the effective date.

Justification

When a public agency denies disclosure of information sought through a Freedom of Information Law (FOIL) request, one recourse for the denied party is to initiate a judicial proceeding to challenge the denial. A judicial proceeding to challenge an agency's denial of disclosure is a costly endeavor in both time and money. The full proceeding can take several months from the time of filing to the exhaustion of all appeals. In addition, the cost of hiring an attorney can be significant depending on the length and scope of the proceedings. Often, citizens simply cannot afford to take a government agency to trial to exercise their right to access public information.

This bill requires the court to award attorneys' fees when a party substantially prevails, unless the court finds that the position of such agency was substantially justified. In the alternative, attorneys' fees will be awarded if the agency failed to respond to a request or appeal within the statutory time, unless the court finds that the agency provided substantive evidence of inability to comply.

This legislation will conform FOIL lawsuits to other lawsuits against the state, which mandate the award of attorney's fees unless the agency can prove it was "substantially justified" in its position. The standard comes from the New York Civil Practice Law and Rules § 8601(a), which has been cited in many years of case law interpreting what it means for an agency to have been "substantially justified" in its actions.

Legislative history

Similar to A.1438B, same as S.533B of 2015, vetoed. A.2121 of 2013 and 2014, referred to governmental operations. Same as S.108 of 2013 and 2014, referred to investigations and government operations. A.9407 of 2012, referred to governmental operations. Same as S.6270 of 2012, referred to investigations and government operations.

Fiscal implications

None

Effective date

Effective immediately