Establishes that in a FOIL proceeding, the court shall assess against an agency reasonable attorney's fees and other litigation costs incurred when a person substantially prevails unless the court finds otherwise.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2750A
SPONSOR: Paulin (MS) TITLE OF BILL: An act to amend the public officers law, in relation
to freedom of information requests and attorney's fees
PURPOSE:
To require the court to issue reasonable attorney's fees when an agency
denies access to freedom of information requests and the petitioner has
substantially prevailed and the court finds that the agency involved had
no reasonable basis for denying access to the records sought.
SUMMARY OF PROVISIONS:
Section 1 amends subdivision 4 of section 89 of the public officers
law to provide that the court in a proceeding related to a denial of
access to records pursuant to a freedom of information request may
asses, against such agency involved in the denial, reasonable attorney's
fees and other litigation costs reasonably incurred by the petitioner in
any case under the provisions of this section in which the petitioner
has substantially prevailed and when the agency failed to respond to a
request or appeal within the statutory time.
In addition, section one provides that the court in such a proceeding
shall assess, against such agency involved, reasonable attorney's fees
and other litigation costs reasonably incurred by the petitioner in any
case under the provisions of this section in which the petitioner
substantially prevails and the court finds that the agency involved had
no reasonable basis for denying access to the records sought.
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, people simply cannot
afford to take a government agency to trial to exercise their right to
access public information.
This bill provides for an award of attorney's fees to prevailing parties
in order to encourage compliance with FOIL and to minimize the burdens
of cost and time from bringing a judicial proceeding.
Specifically, this bill establishes a two- tiered approach. The first
tier would permit a court to award attorney's fees when a person denied
access has substantially prevailed and when the agency failed to respond
to a request or appeal within the statutory time. The second tier would
require an award of attorney's fees when a person denied access has
substantially prevailed and the court finds that the agency had no
reasonable basis for denying access. Under this approach, a petitioner
would not receive an award of attorney's fees against a government agen-
cy when such agency prevails. Rather, attorney's fees would only be
awarded when the petitioner substantially prevails.
The Committee on Open Government recommends this two-tiered approach in
its 2016 annual report.
LEGISLATIVE HISTORY:
A.9506-C of 2016, referred to ways and means.
Same as S.6949-C of 2016 passed in the senate.
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 govern-
ment operations.
A.9407 of 2012, referred to governmental operations.
Same as S.6270 of 2012, referred to investigations and government oper-
ations.
FISCAL IMPLICATIONS:
None
EFFECTIVE DATE:
Effective immediately
