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FOIL: Agencies need to justify imposition of costs/fees

Agencies need to demonstrate sufficient justification for costs and fees related to records requests under the Freedom of Information Law, FOIL. "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. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality." New York law allows a citizen to request documentation and records via the Freedom of Information Law from the government and the government must respond.

While FOIL is relatively easy to use and there are free templates online, having a knowledgable and experienced attorney can greatly assist in obtaining access to records. The Law Offices of Cory H. Morris can assist you in obtaining access to government records via the New York Freedom of Information Law. For a flat fee, the Law Offices of Cory H. Morris can handle your Freedom of Infomation Law Request, Appeal and/or Article 78.  

The New York Freedom of Information Law (FOIL) allows the public access to government records. To hold the government accountability and for an informed citizenry, this right to access records through FOIL is vital to know what the government does on behalf of its people. If a governmental agency responds (with records and not delay) to a request, no litigation is required. Sometimes the administrative appeal to a FOIL request, when records are not provided, may suffice to obtain records from a governmental agency.

In the Matter of Kirsh, the Fourth Department determined:

Contrary to respondents' contention, Supreme Court properly determined that respondents failed to demonstrate sufficient justification for the costs sought to be imposed under Public Officers Law § 87(1). "Where, as here, an agency conditions disclosure upon the prepayment of costs or refuses to disclose records except upon prepayment of costs, it has the burden of articulating a particularized and specific justification' for the imposition of those fees" (Matter of Weslowski v Vanderhoef, 98 AD3d 1123, 1129 [2d Dept 2012], lv dismissed 20 NY3d 995 [2013], quoting Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 [1986]; see Matter of Ripp v Town of Oyster Bay, 140 AD3d 775, 775-776 [2d Dept 2016]). "Specifically, the agency must demonstrate that the fees to be imposed are authorized by the cost provisions of FOIL" (Weslowski, 98 AD3d at 1129), and respondents failed to meet that burden here (see generally § 87[1][c][iii], [iv]).

The case is significant because it allows greater access to public records without the need to pay significant sums for copying paper. This decision also promotes the use of public postings, electronic mailings and other means by which records can be made available to the public.

The case is MATTER OF KIRSCH v. BOARD OF EDUC. OF WILLIAMSVILLE CENT. SCH. DIST., 2020 NY Slip Op 3298 - NY: Appellate Div. (4th Dept. 2020).

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)


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