May 05, 2022

Awarding attorney's fees and costs pursuant to the Freedom of Information Law

In a CPLR Article 78 seeking to compel the production of certain records pursuant to the Freedom of Information Law (Article 6 of the Public Officers Law) and for an award of attorney's fees and litigation costs, Supreme Court denied that branch of the petition that sought such an award, and, in effect, dismissed that portion of the proceeding. Petitioner appealed the Supreme Court's ruling.

Citing Matter of Cook v Nassau County Police Dept., 140 AD3d 1059, the Appellate Division noted that the State Legislature, "[in] order to create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL", provided for the assessment of an attorney's fee and other litigation costs in FOIL proceedings.

Reasonable attorney's fees and other litigation costs reasonably incurred by such person "in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access" are typically award such fees pursuant to Public Officers Law §89. Further, a petitioner is deemed to have "substantially prevailed" within the meaning of §89(4)(c) when the commencement of the "CPLR Article 78 proceeding ultimately succeeds in obtaining the records responsive to the FOIL request, whether by court order or by voluntary disclosure."

In this action the Supreme Court denied the Petitioner's request for attorney's fees and litigation costs, finding that Petitioner had not substantially prevailed and that the Respondents "demonstrated a reasonable basis on the ground of privilege for denying the [FOIL] request." 

Petitioner appealed the Supreme Court's ruling and the Appellate Division found that the Petitioner had "substantially prevailed" as the result of initiating an Article 78 action. Reversing the Supreme Court's order that "denied that branch of the petition seeking an award of attorney's fees and litigation costs," the Appellate Division held that such fees and costs should have been granted to the Petitioner. The court then remitted the matter to the Supreme Court "for a determination of the amount of an award of reasonable attorney's fees and litigation costs" to the Petitioner.

The Appellate Division explained the Respondents did not timely respond to the Petitioner's FOIL request and its initial response consisted of four pages of materials that failed to address three of the four enumerated categories of material Petitioner sought. "It was not until after the commencement of this proceeding that the Respondents provided a significant number of additional documents responsive to the [Petitioner's] FOIL request" [emphasis supplied by the Appellate Division in it opinion]. Under the circumstances of this case, said the court, "the [Petitioner] was the 'substantially prevailing' party."

The Appellate Division's decision also opined that the Respondents "did not have a reasonable basis for initially denying the [Petitioner] access to the responsive materials." Although a limited amount of material was reasonably withheld based on attorney-client privilege, the "[Petitioner's] legal action ultimately succeeded in obtaining substantial unredacted post-commencement disclosure responsive to h[is] FOIL request."

Click HEREto access the Appellate Division's decision posted on the Internet.

 

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