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  • Cory Morris

FOIL: Bill De Blasio must produce correspondence under NY Freedom of Information Law


Under New York's Freedom of Information Law is codified within the New York Public Officers Law. It was enacted in 1977 and the legislature stated that "a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government." Since then, open access to agency records, under the New York Freedom of Information Law, became the presumption not the exception.

Also referred to as FOIL, the New York Freedom of Information Law was founded upon "The legislature['s] declar[ation] that government is the public's business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article." Public Officers Law § 84. "All government records are . . . presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law § 87 (2). To ensure maximum access to government documents, the exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption. As [the Court of Appeals] has stated, [o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld."Gould v. New York City Police Dep't, 89 N.Y.2d 267, 274-275 (1996)(internal quotation marks and citations omitted).

Here, Petitioner is a reporter for a cable news station. The Petitioner sought records under FOIL, New York Public Officer's Law, for correspondence of Mayor Bill de Blasio. The correspondence were withheld on several the basis of exemptions to FOIL and the Petitioner appealed. Not satisfied with the Respondents' (Bill de Blasio et al) reasons for withholding certain records, the Petitioner commenced a litigation, a special proceeding - an Article 78 proceeding. Shortly after commencing the proceeding, as is sometimes the case, the petitioner "respondents delivered an additional quantity of documents to petitioners, estimated by them to be approximately 1500 pages." Still, "Respondents continued to withhold an unknown number of additional documents on the same basis as before. In December 2016, respondents apparently announced that, going forward, they would no longer claim a privilege with respect to future emails between the Mayor's administration and unpaid outside advisors." Id. (citing "De Blasio Ends Challenge to Disclosing Emails From `Agents of the City,'" New York Times, December 6, 2016 A25; "De Blasio Says `Going Forward' He Won't Hide Conversations With Private Consultants," Observer, December 4, 2016).

Respondents, Mayor Bill de Blasio, contested the disclosure of records on several grounds. The court rejects the inter-agency/intra-agency deliberative privilege under FOIL and also rejects the common law privilege concerning certain governmental communications. In so doing, the court states that "in civil proceedings brought solely to obtain documents pursuant to FOIL, where disclosure is not sought merely for the personal interest of the private party but to uphold the interest of the public for government transparency, the Court of Appeals has specifically held that "the common-law [public] interest privilege cannot protect from disclosure materials which [FOIL] requires to be disclosed." Id. citing Doolan v. Board of Coop. Educ. Servs., 2d Supervisory Dist. of Suffolk County, 48 N.Y.2d 341, 347 (1979).

It is important to note that Petitioner is awarded reasonable attorney's fees. When represented by counsel or when reasonable attorney's fees are incurred, FOIL allows for the award of reasonable attorney's fees in certain instances. Public Officers Law § 89 (4) (c), which states that the court may award reasonable attorneys' fees and costs to a petitioner that has "substantially prevailed" over the agency where "i. the agency had no reasonable basis for denying access; or ii. the agency failed to respond to a request or appeal within the statutory time." It is important to note that the public has this vital tool available when government improperly withholds records. Here "there is no question but that petitioners have substantially prevailed, since the court is directing respondents to produce the documents requested by petitioners that are still being withheld by respondents."

Public access to information and government accountability is vital to democracy. Access to government agency records is a statutory right in New York State. Should you feel that you need an attorney to assist in obtaining agency records, please contact the Law Offices of Cory H. Morris, 631-450-2515. The case is MATTER OF RAUH v. DE BLASIO, 2017 NY Slip Op 30552 - NY: Supreme Court 2017.


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