In the Matter of Law Offices of Cory H. Morris [Plaintiff] v Suffolk County [Respondent], Plaintiff appealed the judgment of Supreme Court [1] denying Plaintiff's petition seeking the disclosure of certain records pursuant to New York State's Freedom of Information Law [FOIL];* [2] denying an award of attorney's fees and litigation costs; and [3] dismissing the proceeding.
The Appellate Division modified and reinstated, on the law, those branches of the petition which sought to compel disclosure of certain records pursuant to FOIL and for an award of attorney's fees and litigation costs.
The Appellate Division then remanded the matter to Supreme Court for further proceedings, explaining a number of FOIL essentials, including the follows:
1. "In order to promote open government and public accountability, FOIL
imposes a broad duty on government to make its records available to the
public (Matter of Tuckahoe Common Sch. Dist. v Town of Southampton,
179 AD3d 929;**
2. "The statutory time to respond to a FOIL request for records is 'within five business days of the receipt of a written request,' and the agency should respond by 'mak[ing] such record available to the person requesting it, deny[ing] such request in writing or furnish[ing] a written acknowledgment of the receipt of such request and a statement of the approximate date ... when such request will be granted or denied'" ... that "[d]enial of access shall be in writing stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body designated to determine appeals, and that person or body shall be identified by name, title, business address[,] and business telephone number;
3. "21 NYCRR 1401.7(c) provides that a FOIL request is deemed denied if there is no response to the request within five business days (Matter of Madden v Village of Tuxedo Park, 192 AD3d 802);
4. "[A]ny administrative appeal of a denial [must] be undertaken within 30 days of the denial (Matter of Snyder v Nassau County, 199 AD3d at 924);
5. "A petitioner who does not 'appeal[ ] the denial in writing' will generally be deemed to have 'failed to exhaust its administrative remedies and, thus, [may] not resort to a judicial forum to gain relief' (Matter of Bradhurst Site Constr. Corp. v Zoning Bd. of Appeals, Town of Mount Pleasant, 128 AD3d 817, citing Doe v Lake Grove Sch., 107 AD3d 841;
6. However, where, as here, the agency "fails to inform the person [or entity] making the FOIL request that further administrative review of the determination is available, the requirement of exhaustion [of administrative remedies] is excused (Matter of Lepper v Village of Babylon, 190 AD3d 738, Matter of Barrett v Morgenthau, 74 NY2d 907; [see Matter of Rivette v District Attorney of Rensselaer County, 272 AD2d 648];
7. Plaintiff's alleged "aware[ness] ... of the availability of administrative review ... did not relieve the agency of its responsibility to advise the [Plaintiff] that such review was available, and of the procedures for securing it (Matter of Orange County Publs. v Kiryas Joel Union Free School Dist., 282 AD2d 604);
8. "Contrary to the [Respondents'] contention, the proceeding was not rendered academic by its post-commencement disclosure of records in response to some of the [Plaintiff] requests, since an actual controversy between the parties still exists concerning whether the [Plaintiff's] remaining requests are exempt from disclosure (see Matter of Barry v O'Neill, 185 AD3d 503, 505; cf. Matter of McDevitt v Suffolk County, 183 AD3d 826; Matter of Convers v County of Orange, 139 AD3d 1060;
9. The Plaintiff's "request for attorney's fees and other costs is ... not academic, nor would it have been rendered academic even if the [Respondent] had eventually provided all of the materials sought (see Matter of Acme Bus Corp. v County of Suffolk, 136 AD3d 896; and
10. "Since that branch of petition which was to compel disclosure of certain records remains undetermined in light of [the Appellate Division's] determination," the Appellate Division held that "the [Plaintiff's] request for an award of attorney's fees and litigation costs is premature (Matter of Jewish Press, Inc. v New York City Dept. of Educ., 183 AD3d 731; see Matter of McDevitt v Suffolk County, 183 AD3d at 828)."
Accordingly, as noted earlier, the Appellate Division reinstated those branches of the petition which were to compel disclosure of certain records and for an award of attorney's fees and litigation costs, and remitted the matter to Supreme Court, Suffolk County, "for further proceedings consistent herewith and a new determination of those branches of the petition."
* Public Officers Law, Article 6.
** N.B.: Typically submitting a "formal FOIL request" pursuant to administrative procedures established by the agency is required to obtain the documents or information sought. However, the release of certain public records may be prohibited by statute such as Education Law §1127 and §33.13 of the Mental Hygiene Law. Further, the agency may decline to provide documents or information sought pursuant to a FOIL request, or otherwise, that fall within the ambit of one or more of the "FOIL exceptions" that the agency could rely upon in denying a FOIL request, in whole or in part, absent a prohibition in law.
Click HERE to access the Appellate Divisions decision posted on the Internet.