NY Freedom of Information Law (FOIL); Substantially Prevailing & Awarding Attorney's Fees


In this Freedom of Information law (“FOIL”) hybrid case, Petitioners were taxpayers seeking, among other things, records concerning similar property sales used by the town assessor. A hot topic issue these days (especially in Nassau County), the property tax assessments should bear some reasonable relationship to other similarly situated properties one would think? The Petitioners sought to find out. The records are public and the request is made. The Respondents responding asked for more time. Petitioners pay the fees associated with production. Petitioners wait yet the records do not arrive. No exemption to the Freedom of Information Law, FOIL is raised. Petitioners appealed. Respondents did not comply. No records were produced. Petitioners sued.

After the law suit commenced, Petitioners received records. In addition to the records sought, Petitioners sought reasonable attorney’s fees pursuant to Public Officers Law § 89, FOIL. In making a determination under FOIL, the Court must determined if one substantially prevailed:

'A petitioner "substantially prevail[s]" under Public Officers Law § 89(4)(c) when [he or she] "receive[s] all the information that [he or she] requested and to which [he or she] is entitled in response to the underlying FOIL litigation" ' (Matter of Competitive Enter. Inst. v. Attorney Gen. of New York, 161 AD3d 1283, 1286, 76 N.Y.S.3d 640 [2018], quoting Matter of New York State Defenders Assn. v. New York State Police, 87 AD3d 193, 196, 927 N.Y.S.2d 423 [2011] ), . Significantly, the voluntariness of an agency's disclosure after the commencement of a CPLR article 78 proceeding will not preclude a finding that a litigant has substantially prevailed (see Matter of Madeiros v. New York State Educ. Dept., 30 NY3d at 79, 64 N.Y.S.3d 635, 86 N.E.3d 527; Matter of Jaronczyk v. Mangano, 121 AD3d 995, 997, 996 N.Y.S.2d 291 [2014]; Matter of New York State Defenders Assn. v. New York State Police, 87 AD3d at 195—196, 927 N.Y.S.2d 423)." (Matter of Cobado v Benziger, 163 AD3d 1103, 1106 [3d Dept 2018].)

As noted in this FOIL proceeding, the records were not provided before litigation but only after Petitioners filed in Court. Accordingly, this is significant because of the remedies sought - an Award of Attorney's Fees. “The next inquiry is whether respondents had a reasonable basis to deny access to the records or whether respondents failed to respond within the statutory time limits. Respondents do not argue that they did not comply within the statutory time limits or that they had a reasonable basis for denial” The records were paid for and the Respondents delayed. Respondents did not raise any FOIL exemption. The Court is unsympathetic for Respondents whom if it is “understaffed, or if responding to the FOIL requests was burdensome, respondents could have considered employing the option available under Public Officers Law § 89 [3] [a].” The little municipality on the prairie defense does not work well for the Town of Jay assessor(s).

Petitioner’s counsel submits an affidavit in support of his request for reasonable attorney’s fees. The rate is rather modest considering the size of the firm but, perhaps, it is the locality that allows for (or bears only) an average hourly rate of slightly under $300 an hour. The Court rejects the argument that “the attorneys' fees sought would amount to a windfall to petitioners as the Town of Jay is a municipality in Essex County that has limited resources and petitioners' counsel is a large law firm located in Albany, New York [and that] petitioners' counsel assigned multiple attorneys to work on the file to ‘maximize billing.’ ” In so doing, the Court holds that a FOIL Petitioner(s) has its choice of counsel and the choice of how many attorneys it may employ in obtaining relief through this special proceeding. Even in so doing, the Court reduces the amount of reasonable attorney’s fees awarded:

However, when considering the time, effort and skill required, the difficulty of the questions presented and the responsibility involved, the Court concludes an award of less than the fees sought is warranted. It was the failure by respondents to timely respond to the FOIL requests which caused petitioners to asserts the claims in the first and second causes of action. Respondents never asserted that the records, or any portion thereof, were exempt from disclosure by reason of a statutory exemption. Rather, respondents simply failed to respond.

The case is Matter of Bola v Bramer, 2018 NY Slip Op 51621(U) (Essex Sup. Ct. 2018). Should you wish to retain counsel for a Freedom of Information Law, FOIL, litigation, the Law Offices of Cory H. Morris represents Petitioners in everything from the initial request to appellate practice; call today 631-450-2515.


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