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A05357 Summary:

BILL NOA05357A
 
SAME ASSAME AS S05801-A
 
SPONSORSteck
 
COSPNSRAubry, Simon, Magnarelli, Thiele, Kelles, Wallace
 
MLTSPNSR
 
Amd 89 & 107, Pub Off L
 
Provides for the award of reasonable attorneys' fees in FOIL proceedings if the person is successful and in open meeting proceedings to the successful petitioner and against the public body.
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A05357 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5357A
 
SPONSOR: Steck
  TITLE OF BILL: An act to amend the public officers law, in relation to the award of reasonable attorneys' fees in certain proceedings   PURPOSE: To Provide for the award of reasonable attorneys' fees in FOIL proceedings if the person is successful and in open meeting proceedings to the successful party.   SUMMARY OF PROVISIONS: Section 1. Paragraph (c) of subdivision 4 of section 89 of the public officers law, as amended by chapter 453 of the laws of 2017, is amended to read. as follows: (c) The court in such a proceeding shall assess, against such agency involved, reasonable attorney's fees and other litigation costs reason- ably incurred by such person in any case under the provisions of this section in which such person has prevailed. § 2. Subdivision 2 of section 107 of the public officers law, as amended by chapter 397 of the laws of 2008, is amended to read as 17 follows: 2. In any proceeding brought pursuant to this section, costs and reason- able attorney fees shall be awarded by the court, to the successful party. Section 2: Effective date.   JUSTIFICATION: According to the New York Coalition For Open Government there is an open government crisis in New York State. The Coalition as a non-partisan, nonprofit organization has documented through their reports large scale noncompliance with open government laws. In random checks of local governments across the state the Coalition in 2022 found that: *72% of towns were not posting meeting documents online as required by law. *25% of towns.were not posting meeting minutes or recordings online as required by law. *39% of counties failed to acknowledge a Coalition FOIL request within five business days as required by law.. *28% of counties never acknowledged the Coalition FOIL request. *73% of election boards failed to acknowledge a Coalition FOIL request within five business days as required by law. It took an average of 49 days just to receive meeting minutes from county Board of Elections Unlike other states, New York does not have an independent body with enforcement powers to address violations of the Open Meetings Law and Freedom of Information Law. Other states also impose fines or criminal charges for violations of open government laws, such penalties are nct available in New York. The only recourse available to the public in NY is retaining an attorney to file an Article 78 proceeding and hope that the court will award attorney fees. New York's current attorney fee statute is weaker than many other states and it is more difficult to obtain attorney fees when litigation is successful. In California, Colorado, Delaware, Florida, Illinois, Loui- siana, Michigan, Montana, New Jersey, Rhode Island, and Washington, attorney fees are awarded if a party "prevails" in a lawsuit. New York's statute requires that a party "substantially prevail" before attorney fees will be awarded, which is a higher standard. After a plaintiff is successful in an Article 78 action, then a whole debate occurs as to whether the plaintiff "substantially prevailed" or not in order to receive attorney fees. New York's statute has an additional hurdle in that there must be an additional finding by the court that there was ho reasonable basis for the agency to deny the FOIL request. This addi- tional finding is not required in the states listed above. Under the Open Meetings Law, if an agency believed there was a reason- able basis for holding an improper executive session then attorney fees will not be awarded. Whether there was a reasonable basis or not if a court determines that an executive session was improperly held a successful plaintiff should be reimbursed for their attorney fees and costs. The only recourse for the public to address violations of open govern- ment laws is through litigation, which is a difficult step for most people to take. New York's current law makes it harder than other states for a successful plaintiff to obtain attorney fees. There needs to be some Consequence for the large noncompliance with open government laws, as documented by the New York Coalition For Open Government. Improving New York's attorney fee statute will assist the public in being reim- bursed attorney fees when they successfully prevail regarding an Open Meetings Law and Freedom of Information Law violation.   LEGISLATIVE HISTORY: New bill   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: This act shall take effect immediately.
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A05357 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5357--A
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                      March 7, 2023
                                       ___________
 
        Introduced  by M. of A. STECK -- read once and referred to the Committee
          on Governmental Operations  --  committee  discharged,  bill  amended,
          ordered reprinted as amended and recommitted to said committee
 
        AN  ACT  to  amend  the public officers law, in relation to the award of
          reasonable attorneys' fees in certain proceedings

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1. Paragraph (c) of subdivision 4 of section 89 of the public
     2  officers law, as amended by chapter 453 of the laws of 2017, is  amended
     3  to read as follows:
     4    (c) The court in such a proceeding[:
     5    (i) may] shall assess, against such agency involved, reasonable attor-
     6  ney's fees and other litigation costs reasonably incurred by such person
     7  in  any  case  under the provisions of this section in which such person
     8  has [substantially] prevailed[, and when the agency failed to respond to
     9  a request or appeal within the statutory time; and  (ii)  shall  assess,
    10  against such agency involved, reasonable attorney's fees and other liti-
    11  gation  costs  reasonably  incurred by such person in any case under the
    12  provisions of this  section  in  which  such  person  has  substantially
    13  prevailed  and  the  court finds that the agency had no reasonable basis
    14  for denying access].
    15    § 2. Subdivision 2 of section 107  of  the  public  officers  law,  as
    16  amended  by  chapter  397  of  the  laws  of 2008, is amended to read as
    17  follows:
    18    2. In any proceeding brought  pursuant  to  this  section,  costs  and
    19  reasonable  attorney  fees  [may] shall be awarded by the court, [in its
    20  discretion,] to the successful [party] petitioner and against the public
    21  body. [If a court determines that a vote was taken in material violation
    22  of this article, or  that  substantial  deliberations  relating  thereto
    23  occurred  in private prior to such vote, the court shall award costs and
    24  reasonable attorney's fees to the successful  petitioner,  unless  there
    25  was  a  reasonable  basis  for  a  public  body to believe that a closed
    26  session could properly have been held.]
    27    § 3. This act shall take effect immediately.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09579-02-3
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