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FOIL Fee denial Explained

Freedom of Information Law (FOIL) allows litigants to recover the fees paid to an attorney, attorney fees, pursuant to the Public Officers Law Section 89. Sometimes cases cry out for some punitive remedy for when agencies violate the law.

This case affirmed the denial but acknowledges that Respondents violated the time provisions of FOIL, making multiple extensions of time based upon the factual circumstances in this case.

FOIL Fees are sometimes discretionary and sometimes mandatory. In MATTER OF SAVE MONROE AVE., INC. v. New York State Dept. of Transp., 2021 N.Y. Slip Op 4639 (App. Div. 3rd Department, 2021), the majority of the Court discusses why Petitioner should not obtain attorney's fees, over a dissent.

Persons or entities may make FOIL requests. Non-for-profits can make FOIL requests, like a legal aid society. If one is denied and must sue to enforce their rights under the Public Officers Law, FOIL, that person is called the petitioner. In this case, "Petitioner is a not-for-profit corporation engaged in litigation challenging the proposed development of a shopping plaza in the Town of Brighton, Monroe County." After multiple time extensions, "petitioner submitted a letter to respondent's chief counsel declaring that the repeated extensions constituted a constructive denial of its FOIL request and that it was administratively appealing that denial." Without a substantive response to the appeal, other than the conclusion that the multiple time extensions were reasonable, Petitioner filed a lawsuit. On appeal, Petitioner is denied its attorney's fees.

Often times FOIL requests are time sensitive - while the government requires a notice of claim in ninety days or enforces a strict statute of limitations for those who must sue government, it appears that the time limitations made for FOIL responses are malleable, at best. This case involves the question of what is reasonable delay to a FOIL request under the circumstances.

When FOIL is not complied with, access to government records is halted. The public may lose faith in unaccountable local government. 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 or entities should not be forced to expend attorney's fees for such violations. Here, the Court finds that the discretionary denial of attorney's fees is appropriate.

The reasonableness of this delay must be gauged "under the circumstances of the request" (Public Officers Law § 89[3][a]). As set forth in the governing regulation, an assessment of reasonableness requires consideration of "the volume of a request, the ease or difficulty in locating, retrieving or generating records, the complexity of the request, the need to review records to determine the extent to which they must be disclosed, the number of requests received by the agency and similar factors" (21 NYCRR 1401.5[d]). Without discussing the staff, or perhaps the need to staff the agency with more persons responding to FOIL requests, the Court notes that "the affidavit of respondent's counsel in support of the motion to dismiss, respondent received over 1,250 FOIL requests in the last four months of 2018" and explains that "responding documents were extensive and involved various areas within respondent pertaining to planning, design, permitting and engineering for the project." In denying attorney's fees, the Court holds that "In this context, the response, made within four months of the request, was certainly reasonable."

As the Court notes here,

even though the records were released a few weeks after the proceeding was commenced, petitioner's claim for counsel fees should be denied, as the record reveals that respondent acted in good faith by specifying a reasonable basis for the delay and promptly releasing the documents upon completing its review and not just in response to the litigation (see Matter of Friedland v Maloney, 148 AD2d 814, 816 [1989]). For the foregoing reasons, the petition is dismissed.

In MATTER OF SAVE MONROE AVE., INC. v. New York State Dept. of Transp., 2021 N.Y. Slip Op 4639 (App. Div. 3rd Department, 2021). the dissent carefully discussed why fees should be awarded:

In light of such constructive denial and respondent's disclosure of numerous documents only after this CPLR article 78 proceeding was commenced, it is also my view that petitioner is entitled to counsel fees despite the fact that the proceeding was rendered moot, as the majority holds (see Matter of Gannett Satellite Info. Network, LLC v New York State Thruway Auth., 181 AD3d 1072, 1074 [2020]; Matter of Cobado v Benziger, 163 AD3d 1103, 1105-1106 [2018]).

Attorney's must exercise reasonable care and knowledge of the law in seeking access to records and an award of reasonable attorney's fees under the Public Officers Law, FOIL and the public must understand the leniency of agency responsiveness, at least for now.

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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