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FOIL Final Determination and Article 78

In obtaining access to public records, agency records under the Public Officers Law, there is an enormous amount of government available that may not otherwise publish records which is why the Freedom of Information Law was enacted. In this case "the proceeding sought all documents from respondent related to respondent's Pilot Program List determination." In this New York City FOIL Litigation, Judge Crane denies attorney's fees but grants access to the records sought.

In other proceedings, lawyers and their clients can simply seek records under FOIL. In some cases, rather than conduct traditional discovery, attorneys and litigants can seek records under the New York Freedom of Information Law, FOIL, the Public Officers Law Sections 84 to 89.

It is worth noting that the records request was properly made. Government agencies, as defined by the Public Officers Law, must timely and appropriately respond to FOIL Requests. Here, "Instead, respondent provided the guidelines used to calculate the BDI (NYSCEF Doc. Nos. 6, 8) and apparently used a spreadsheet that referred to the BDI as well (see NYSCEF Doc. No. 22, ¶ 20 [relating to another building that challenged a FOIL production for the same reason]). On May 16, 2019, petitioner appealed the FOIL response and asked for all information relating to its BQI score and the scoring method for BQI. HPD did not reply to its appeal." Petitioner attempted yet Respondent failed to respond to an administrative appeal, often the basis of Respondents to seek dismissal of the lawsuit without getting to the merits of the FOIL litigation.

One must exhaust one's administrative remedies, see Matter of Lepper v. Village of Babylon (2d Dep't, 2021) prior to seeking review in the courts. With FOIL, that review is an Article 78 proceeding, a special proceeding under the CPLR. To seek review of a denial under FOIL, one must file an administrative appeal. As the Court notes here,

the original petition was timely as a response to the FOIL request. A petitioner cannot appeal the denial of until there is a final determination (CPLR § 217[1]). Because the documents that respondent produced were mislabeled, petitioner believed it did not receive the correct documents and it appealed the decision. Petitioner properly deemed respondent's non-response to its appeal as a denial and commenced the proceeding in a timely fashion (see Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 72 [2017]).

In the case at hand, STF 390 WADSWORTH HOLDING LLC v. NEW YORK CITY DEPT. OF, 2021 N.Y. Slip Op 31362 (Sup. Ct. 2021), the court declined to award reasonable attorney's fees, stating that "the court finds that respondent attempted to comply within a reasonable time and, although its efforts were flawed, its conduct does not warrant the imposition of fees." The records, however, should have been produced and were not.

The attorney seeking records under FOIL can later make an application for reasonable attorney's fees after the production of records, arguing that it substantially prevailed under the Public Officers Law. Here, as the Court Orders " that respondent has 30 days from the date of the filing of this order to serve and file its answer and to provide any documents in the record it has not already produced," Petitioner's counsel will hopefully prevail reasonable attorney's fees for these violations of the Public Officers Law, FOIL violations.

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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