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New York Freedom of Information Law Reasonable Attorney's Fees Award Litigated


Under the New York Freedom of Information Law, also known as FOIL, the public has the right to request certain government agency records. "The people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society." Public Officers Law Section 84. Should such requests by the public not be honored, there is the right to appeal the denial or constructive denial of a FOIL request. Should a Freedom of Information Law Appeal be dishonored, there is remedy vis-a-vis access to the Courts, a special proceeding.

It is important that such special proceedings be brought and the public have adequate access to agency records under the New York Freedom of Information Law, FOIL. As a deterrent for the government's failure to honor requests made pursuant to the Freedom of Information Law, FOIL, there is a the potential that reasonable attorney's fees may be awarded in such special proceedings. The case at issue here deals with what is "reasonable" as far as an award of such fees goes.

Because of the nature of such proceedings, it is not uncommon that attorneys (such as this attorney) will charge a flat-fee for services relative to bringing a Freedom of Information Law request, appeal and, if necessary, a special proceeding to compel the production of documents. In this case, there was a flat-fee of six-thousand ($6,000) dollars for certain work to be performed. However, "the Court finds that the award of counsel fees should not be limited to the $6,000.00 flat fee charged to petitioners in connection with this matter[,]" because more than six-thousand dollars of work was done on the matter. It cites that "the [C]ourt `is not bound by the existence of a retainer agreement or other agreement between the parties as to the fees in question'" Matter of Rose BB., 35 AD3d at 1046, quoting Matter of Middagh, 267 AD2d 593, 593 [1999]; see Matter of Verplanck, 151 AD2d at 767; see also Ross v Congregation B'Nai Abraham Mordechai, 12 Misc 3d 559, 565-568 [Civ Ct, NY County 2006]). Accordingly, the Court allows the reasonable attorney's fees to exceed six-thousand dollars.

"[T]he [C]ourt `bears the ultimate responsibility to decide what constitutes reasonable legal compensation'" (Matter of Rose BB., 35 AD3d 1044, 1046 [2006], appeal dismissed 8 NY3d 936 [2007], quoting Matter of Verplanck, 151 AD2d 767, 767 [1989]; see Hinman v Jay's Vil. Chevrolet, 239 AD2d 748, 748 [1997]). "In determining what constitutes reasonable compensation . . ., the [C]ourt should consider `the time commitment involved, the relative difficulty of the matter, the nature of the services provided, counsel's experience and the results obtained'" (Matter of Rose BB., 35 AD3d at 1046, quoting Matter of Middagh, 267 AD2d at 593-594; see Hinman v Jay's Vil. Chevrolet, 239 AD2d at 749). The Court must also award counsel fees with an eye toward moderation, "`seeking to avoid either the reality or the appearance of awarding windfall fees'" (Shamrock Power Sales, LLC v Scherer, 2016 WL 7647597, *16 [SDNY 2016], quoting New York State Assn. for Retarded Children, Inc. v Carey, 711 F2d 1136, 1139 [2d Cir 1983]).

Freedom of Information Law is nuanced and, although a narrow section of statutory law, is rife with case law interpreting various Freedom of Information Law exemptions. The Court here awards more than $9,000 albeit over $40,000 was requested. This award serves as an important deterrent to government agencies that refuse to comply with their obligations under the Public Officers Law and should serve as a reminder that, under New York Law, this statutory civil right allows for the recovery of fees expended by the petitioner (person who requested the information).

The case is LEE ENTERS., INC. v. City of Glens Falls, 2017 N.Y. Slip Op 50451 (NY: Supreme Court, Warren 2017).


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