September 10, 2021

An individual whose Freedom of Information request for public records was denied exhausts administrative remdies by sending a timely objection to the denial to the chief executive or his designee

 

In this CPLR Article 78 proceeding to compel a public entity to comply with petitioners' [Plaintiff's] requests pursuant to the Freedom of Information Law [FOIL] (Public Officers Law Article 6), the custodian of the records [Custodian] appealed Supreme Court's judgment that determined that Plaintiffs had "substantially prevailed in the proceeding" and awarded Plaintiffs attorney fees and costs. The Appellate Division unanimously affirmed the Supreme Court's ruling.

The court said it concluded that Plaintiff had properly brought this proceeding after the Custodian [1] failed to meet its anticipated date for producing documents in response to one of petitioners' FOIL requests and [2] ignored petitioners' additional FOIL requests.

The Appellate Division then rejected the Custodian's claim that the Plaintiffs failed to exhaust their administrative remedies prior to commencing their Article 78 action, explaining that §89[4][a] of the  Public Officers Law provides that "any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body." In the instant matter, said the court, Plaintiffs had exhausted their administrative remedies by sending timely letters to the Custodian objecting to its denial of their requests and asking the Custodian to consider their letter "appeals pursuant to Public Officers Law §89(4)(a)."

As to the Custodian's objection to Supreme Court's awarding Plaintiffs attorney's fees, arguing that "they did not 'substantially' prevail within the meaning of FOIL's fee-shifting provision," the Appellate Division opined that Plaintiffs "received a complete response to their requests only after commencing the instant proceeding," and saw no reason "to disturb Supreme Court's award of attorney's fees and costs."

Click HERE to access the Appellate Division's decision.

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