Advisories
New York Amends FOIL Provisions on Attorney's Fees
12.19.17
New York just made fighting denied Freedom of Information Law requests a bit more appealing. On December 13, 2017, New York Governor Andrew Cuomo signed AO2750-A into law amending the attorney’s fees provisions of New York’s Freedom of Information Law (“FOIL”), Public Officer’s Law § 84 et seq., to make attorney’s fees awards compulsory where a government agency had “no reasonable basis” for denying access to a request.
Under the old law, courts were given wide discretion in determining whether to award attorney’s fees even where the court found the agency acted unreasonably to deny access to public records. As a result, even where it was clear that an agency’s position lacked merit, many requestors would frequently forego challenging the agency’s denial of disclosure due to the potentially high cost of challenging a denial through an Article 78 proceeding in New York Supreme Court. And even where the requestor did challenge the agency action and proved the agency acted unreasonably, an award of attorney’s fees was not a foregone conclusion. This often left the requestor holding the bag for the agency’s unreasonable actions. This new law changes that.
The bill creates a two-tiered system for awarding fees. The first tier – where a requestor is denied access, has substantially prevailed, and the agency failed to respond to a request or appeal within the statutory time – still vests the court with wide discretion to determine whether an award of attorney’s fees is warranted. The second tier, however, would require the Court to award attorney’s fees where the requestor is denied access, has substantially prevailed, and the court finds that the agency had “no reasonable basis” for denying the request.
While the new law will no doubt encourage requestors to pursue unreasonable denials of FOIL requests through the courts, it bears noting that this law does not strip the Supreme Court of all its discretion in awarding fees. Before the compulsory fee provision kicks in, the Supreme Court still must make a fact-based determination that the agency had “no reasonable basis” for denying the request. In other words, simply because a requestor ultimately prevails does not mean they are necessarily entitled to attorney’s fees. Requestors should be cognizant of this fact when deciding whether to fight a denial of a request through litigation. That caveat aside, the new law will incentivize New York agencies to be more cooperative in responding to FOIL requests, and encourage greater transparency.
Under the old law, courts were given wide discretion in determining whether to award attorney’s fees even where the court found the agency acted unreasonably to deny access to public records. As a result, even where it was clear that an agency’s position lacked merit, many requestors would frequently forego challenging the agency’s denial of disclosure due to the potentially high cost of challenging a denial through an Article 78 proceeding in New York Supreme Court. And even where the requestor did challenge the agency action and proved the agency acted unreasonably, an award of attorney’s fees was not a foregone conclusion. This often left the requestor holding the bag for the agency’s unreasonable actions. This new law changes that.
The bill creates a two-tiered system for awarding fees. The first tier – where a requestor is denied access, has substantially prevailed, and the agency failed to respond to a request or appeal within the statutory time – still vests the court with wide discretion to determine whether an award of attorney’s fees is warranted. The second tier, however, would require the Court to award attorney’s fees where the requestor is denied access, has substantially prevailed, and the court finds that the agency had “no reasonable basis” for denying the request.
While the new law will no doubt encourage requestors to pursue unreasonable denials of FOIL requests through the courts, it bears noting that this law does not strip the Supreme Court of all its discretion in awarding fees. Before the compulsory fee provision kicks in, the Supreme Court still must make a fact-based determination that the agency had “no reasonable basis” for denying the request. In other words, simply because a requestor ultimately prevails does not mean they are necessarily entitled to attorney’s fees. Requestors should be cognizant of this fact when deciding whether to fight a denial of a request through litigation. That caveat aside, the new law will incentivize New York agencies to be more cooperative in responding to FOIL requests, and encourage greater transparency.