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FOIL Attorney's Fees Awarded to Legal Aid

Freedom of Information Law (FOIL) attorneys know that an award of attorney's fees can be awarded in instances defined under the Public Officers Law, Section 89. Here, Bobby Quackenbush represented Legal Aid in this FOIL litigation for which he seeks, among other things, an award of reasonable attorney's fees under FOIL. The Attorney's Fee award in FOIL is usually the only meaningful deterrent available under FOIL.

What typically happens in such FOIL cases, the agency that violated the FOIL starts producing records responsive to the Freedom of Information Law Request and then later claims it is moot. "Where a petitioner receives an adequate response to a FOIL request during the pendency of [its] CPLR article 78 proceeding, the proceeding should be dismissed as moot because a determination will not affect the rights of the parties" (Matter of DeFreitas v New York State Police Crime Lab, 141 AD3d 1043, 1044 [3d Dept 2016] [citations omitted]).

The Court notes that "Rather than answer the branch of the Amended Petition that survived the first round of motion practice, DOCCS disclosed additional records to petitioner and then moved for a second time to dismiss the proceeding as moot. The second motion was denied in a Decision & Order dated January 26, 2022 on the ground that DOCCS had not produced responsive records from January 21, 2021 (initial FOIL request) through March 5, 2021 (denial of FOIL appeal) (see (NYSCEF Doc No. 57, p. 5), and DOCCS again was ordered to answer the Amended Petition."

The Court notes that

"A petitioner substantially prevails under [POL] § 89 (4) (c) when it receives all the information that it requested and to which it was entitled in response to the underlying FOIL litigation, even where, as here, [information] is received after the proceeding is commenced" (Matter of Gannett Satellite Info. Network, LLC, 181 AD3d at 1074 [internal quotation marks and citation omitted]; see Matter of Competitive Enter. Inst. v Attorney Gen. of NY, 161 AD3d 1283, 1286 [3d Dept 2018]; Matter of Legal Aid Socy. v New York State Dept. of Corr. & Community Supervision, 105 AD3d 1120, 1121-1122 [3d Dept 2013]; see also Matter of New York State Defenders Assn. v New York State Police, 87 AD3d 193, 195 [3d Dept 2011] ["the 'voluntariness' of . . . disclosure is irrelevant to the issue of whether petitioner substantially prevailed"]; Matter of NYS Funeral Directors Assn. v New York State Dept. of Health, 67 Misc 3d 1243[A], 2020 NY Slip Op 50815[U], *7 [Sup Ct, Albany County 2020] [Hartman, J,], affd 200 AD3d 1255 [3d Dept 2021]).

The issue over a reasonable basis is what becomes dispositive. At first, respondents claimed that incarcerated individuals could use this data to circumvent security policies. Then, the Court recounts, DOCCS later determined that, "with the passage of time, the disclosure of facility-level data would not pose a present threat as the information is historical. "The Court does not find this argument entirely convincing. Petitioner's FOIL request of January 21, 2021 sought COVID-19 testing and positivity data from October 1, 2020." There is no safety issue and sufficient time has passed where this can no longer, reasonably, be considered a security concern.

Attorney's fees are awarded to the FOIL lawyer, Bobby, which means FOIL Attorney's Fees for the Legal Aid Society - "the Court finds that petitioner has "substantially prevailed" in this case and DOCCS lacked a "reasonable basis for denying access to the [requested] records,"[FN1] thereby obliging the Court to assess "reasonable attorney's fees" in favor of petitioner (POL § 89 [4] [c] [ii]). This case highlights why non for profit agencies should use FOIL and take FOIL cases, especially when there are talented attorneys within the entity, because it will not only receive the records it requested but accountability and funding to further their goals.

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)

Do you need legal services in obtaining information under the Public Officers Law, FOIL? Call 631-450-2515 or E-Mail to arrange for a flat-fee price quote. We work on a sliding scale, depending on the amount of the request and whether the request is in the public interest.


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