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A05118 Summary:

BILL NOA05118
 
SAME ASSAME AS S05174
 
SPONSORThiele
 
COSPNSRCarroll, O'Donnell
 
MLTSPNSR
 
Amd §89, Pub Off L
 
Permits assessment of certain fees and costs upon wrongful denial of access to records under the freedom of information law when either the person has substantially prevailed, or if the agency failed to respond within the statutory time.
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A05118 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5118
 
SPONSOR: Thiele
  TITLE OF BILL: An act to amend the public officers law, in relation to permitting assessment of certain fees and costs upon wrongful denial of access to records under the freedom of information law   PURPOSE: This bill is intended to clarify certain provisions in the Freedom of Information Law (FOIL) thereby demonstrating a continued affirmation by the state to the principles of open government and public accountabil- ity.   SUMMARY OF PROVISIONS: Section 1 amends paragraph (c) of subdivision 4 of Section 89 of the Public Officers Law to provide that in an Article 78 proceeding brought to review a FOIL request, the court may assess against the public agency involved, reasonable attorney's fees and litigation costs when the plaintiff has substantially prevailed or when the agency failed to respond to a request or appeal within the statutory time; and shall assess against the public agency involved, reasonable attorney's fees and litigation costs when the plaintiff has substantially prevailed and the agency lacked a reasonable basis in law for withholding the record. Section 2.is the effective date.   JUSTIFICATION: FOIL provisions advance 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 access to records. People should not be forced to spend money and time on judicial proceedings, to gain access to records that agen- cies should have disclosed in the first. place.   LEGISLATIVE HISTORY: 2021-2022: S.2004-A / A.6459-A 2019-2020: S.7835 2017-2018: A.3743 2015-2016: A.2741 2013-2014: A.4368   STATE AND LOCAL 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 a significant 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: This act shall take effect on the first of September next succeeding the date on which it shall become law.
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A05118 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5118
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                      March 2, 2023
                                       ___________
 
        Introduced  by M. of A. THIELE, CARROLL -- read once and referred to the
          Committee on Governmental Operations
 
        AN ACT to amend the public  officers  law,  in  relation  to  permitting
          assessment of certain fees and costs upon wrongful denial of access to
          records under the freedom of information law

          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: (i) may assess, against such agen-
     5  cy involved, reasonable  attorney's  fees  and  other  litigation  costs
     6  reasonably  incurred  by such person in any case under the provisions of
     7  this [section] article in which such person has substantially prevailed,
     8  [and when] or in which the agency failed to  respond  to  a  request  or
     9  appeal  within  the  statutory time; and (ii) shall assess, against such
    10  agency involved, reasonable attorney's fees and other  litigation  costs
    11  reasonably  incurred  by such person in any case under the provisions of
    12  this [section] article in which such person has substantially  prevailed
    13  and  the court finds that the agency had no reasonable basis for denying
    14  access. Nothing contained herein shall be construed to abridge  or  deny
    15  any  right  or  remedy  available  under article eighty-six of the civil
    16  practice law and rules.
    17    § 2. This act shall  take  effect  on  the  first  of  September  next
    18  succeeding the date on which it shall have become a law.
 
 
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09491-01-3
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