June 29, 2020

Conditioning the disclosure of material sought pursuant to a FOIL request upon the prepayment of costs authorized by statute

Supreme Court, among other things, granted Petitioners' motion to prohibit the School District's imposition of costs under color of Public Officers Law §87(1) related to Petitioners' request pursuant to the Freedom of Information Law [FOIL]. School District appealed.

The Appellate Division unanimously affirmed the lower court's decision, explaining that School District "failed to demonstrate sufficient justification for the costs sought to be imposed pursuant to §87(1)." 

Citing Matter of Weslowski v Vanderhoef, 98 AD3d 1123, the Appellate Division opined that in the event an agency conditions disclosure of material sought pursuant to FOIL upon the prepayment of costs or refuses to disclose records except upon prepayment of costs, the agency has the burden of articulating a particularized and specific justification' for the imposition of those fees."

In the words of the Appellate Division: "Specifically, the agency must demonstrate that the fees to be imposed are authorized by the cost provisions of FOIL" and found that the School District failed to meet that burden in this instance.

With respect to School District's contention that Supreme Court should have denied, with prejudice, Petitioners' motion seeking attorney's fees and other litigation costs, the Appellate Division concluded that Supreme Court properly determined that the issue of the School District's liability for such payments remained an open question at this stage in the litigation as no determination could yet be made as to whether Petitioners would "substantially prevail" for the purposes of claiming such reimbursement.

The decision is posted on the Internet at:

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