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FOIL - Attorney's Fees In A Footnote

What is in a footnote, here a great deal: "on remittal petitioners may request the reasonable fees incurred on this second appeal and, if supported, Supreme Court should award them." Matter of 101CO, LLC v New York State Dept. of Envtl. Conservation, 2020 NY Slip Op 07969 [189 AD3d 1948] (3d Dep't. 2021). This is wonderful news when it comes to government accountability, transparency and openness so that attorney's will represent persons who cannot otherwise afford their services in seeking public records and obtaining access to information.

In some proceedings, lawyers and their clients can simply seek records under FOIL without filing a lawsuit. In some cases, rather than conduct discovery under the Civil Practice Law and Rules (CPLR), attorneys and litigants can seek records under the New York Freedom of Information Law, FOIL, the Public Officers Law Sections 84 to 89. Personally, I received more information from FOIL than in certain federal proceedings where there is broad access to discovery.

When FOIL is not complied with, access to government records is halted. The public loses faith in a government that is unaccountable to the citizens to which it must account. FOIL violations should result in attorney's fees or some meaningful repercussion. The law was amended to mandate the award of reasonable attorney's fees in some instances. When the government violates the law, private persons should not be forced to expend attorney's fees for such violations which is why the amendments to the Public Officers Law mandate an award in certain instances, such as the case where records were only produced after litigation and there was no reasonable basis to withhold the records pursuant to the law.

The matter of Matter of 101CO, LLC v New York State Dept. of Envtl. Conservation, 2020 NY Slip Op 07969 [189 AD3d 1948] (3d Dep't. 2021) is important for attorney's seeking to be compensated when holding public agencies accountable under FOIL, the Public Officers Law.

Petitioner sought records from the Department of Environmental Conservation (DEC) and the DEC failed to comply with the Public Officers Law. Under FOIL, "DEC failed to respond to petitioners' FOIL administrative appeal in a timely manner and disclosed responsive documents after petitioners advanced a FOIL claim in this action/proceeding, and DEC then resisted petitioners' efforts to recover counsel fees and costs incurred as a result of its dilatory conduct. In our view, those facts demonstrate that the portion of the prior appeal relating to petitioners' FOIL claim stemmed from "the very kinds of unreasonable delays and denials of access which the counsel fee provision seeks to deter,." Id. (internal citations omitted). Here, "Respondents moved to dismiss the petition/complaint on various grounds and Supreme Court, among other things, dismissed petitioners' FOIL claim as moot given that DEC had turned over most responsive documents and articulated grounds for withholding the rest." The Petitioner ultimately prevailed and an award of reasonable attorney's fees was supposed to occur. Petitioner's counsel was reprimanded for not detailing the records submitted.

Petitioner appealed the Supreme Court determination to the Third Judicial Department to seek its attorney's fees. The appellate court agreed with Petitioner that its submission, albeit not appropriate for an award on paper, should have at least had a hearing in compliance with the statute. "Upon remittal, petitioners submitted a counsel fee affirmation to Supreme Court seeking an award of counsel fees and costs arising from the FOIL request and administrative appeal, the proceedings before Supreme Court, the appeal to this Court and the submissions on remittal. Supreme Court ultimately made an award that omitted counsel fees and costs arising from the appeal to this Court, finding that such would be inappropriate given that DEC had turned over responsive documents before that appeal and that, in any event, the papers were inadequate to permit an assessment of whether the claimed fees and costs were reasonable. Petitioners appeal."

As the Court notes here,

Finally, although we agree with Supreme Court that the attorney's affirmation and invoices submitted by petitioners are too imprecise to reveal the portion of counsel fees and litigation costs attributable to their FOIL claim on the prior appeal, the remedy for that inadequacy was not a refusal to award those fees and costs, but rather an evidentiary hearing to determine what they were....

In Matter of 101CO, LLC v New York State Dept. of Envtl. Conservation, 2020 NY Slip Op 07969 [189 AD3d 1948] (3d Dep't. 2021) the Court "therefore remit[s] for Supreme Court to conduct that hearing and thereafter render a "determination setting forth an analysis of the appropriate factors and reasons for [its] award" Id. (citations omitted).

This case provides two things - that fees may be recovered as a result of an appeal, or perhaps successive appeals, and that attorney's must exercise reasonable care in seeking access to records and an award of reasonable attorney's fees under the Public Officers Law, FOIL.

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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