Failure of the custodian of a public record sought pursuant to a Freedom of Information Law request to respond to the request within the relevant time limit deemed a denial of the request
Kohler-Hausmann v New York City Police Dept., 2015 NY Slip Op 08084, Appellate Division, First Department
Issa Kohler-Hausmann [Kohler-Hausmann] submitted a Freedom of Information [FOIL] request to the New York City Police Department [NYPD]. Although NYPD extended its deadline to respond to Kohler-Hausmann’s FOIL request pursuant to Public Officers Law §89(3)(a), it failed to respond for months after that deadline.
Subsequently Kohler-Hausmann, representing herself, initiated litigation seeking attorney's fees or litigation costs. Supreme Court denied her application. Kohler-Hausmann appealed, contending that she was entitled to such fees or costs as the prevailing party notwithstanding NYPD's eventual voluntary disclosure of the subject of her FOIL request.
The Appellate Division noted that by failing to respond within the deadline, “NYPD constructively denied Kohler-Hausmann FOIL request” and such a “constructive denial” satisfied the requirement that she exhaust her administrative remedies. Citing NYS Defenders Association v New York State Police, 87 AD3d 193, the court observed that NYPD's voluntary disclosure of the material sought by Kohler-Hausmann notwithstanding, her claim for attorney's fees and other litigation costs was not moot, as "the voluntariness of ... disclosure is irrelevant to the issue of whether [a] petitioner substantially prevailed in [a FOIL] proceeding," since "to allow a respondent to automatically forestall an award of counsel fees simply by releasing the requested documents before asserting a defense would contravene the very purposes of FOIL's fee-shifting provision."
Further, the court said that the “attorney petitioner's self-representation” does not preclude an award of attorneys' fees as other “similarly worded statutes have been interpreted to authorize an award of attorneys' fees to a prevailing litigant who represented himself or herself or had the benefit of free legal services.”
The Appellate Division held that:
 Kohler-Hausmann met the statutory requirements for seeking "other litigation costs reasonably incurred" by her in pursuit of her Freedom of Information [FOIL] request;
 that she "substantially prevailed;" and
 NYPD "failed to respond to [her request] ... within the statutory time."
Accordingly, the court remanded the matter to Supreme Court for consideration of herrequest for attorneys' fees or litigation costs.
The decision is posted on the Internet at: