Injury/Accident

FOIL - Mootness, Amendments and Attorney Fees


FOIL - the Freedom of Information Law - 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 is needed. This case highlights the need to specify or amend the request for relief before and after filing together with a very interesting set of records sought.


In the MATTER OF NEW YORK STATE FUNERAL DIRECTORS ASSN. v. New York State Dept. of Health, 2021 N.Y. Slip Op 6897 (App. Div. 2021), the Third Department evaluated the Supreme Court finding dismissing the petition and awarding the FOIL requestor attorney's fees under the circumstances because all the relief sought was ultimately granted.


The Third Department notes the interesting reason why this case was brought...

In January 2018, after an alleged cheating scheme was discovered, respondent notified certain funeral directors that the International Conference had invalidated their licensing examination scores and that they would therefore be required to retake and pass the National Board Examination as part of their upcoming biennial registration. Petitioner — a not-for-profit association representing funeral firms throughout the state — submitted a request...seeking disclosure of various records relating to the invalidation of the funeral directors' test scores and the requirement that they retake the licensing examination in order to renew their licenses.

Id. (external quotation marks omitted and internal citations preserved). This is yet another interesting example of how one can have "Fun with FOIL," and showing that nearly anyone, even a "not-for-profit association representing funeral firms throughout the state" can make and prosecute FOIL requests.


Initially, the agency (known as the Respondents after suit) denied "access to records that are compiled for law enforcement purposes and which, if disclosed, would 'deprive a person of a right to a fair trial or impartial adjudication.' " After this denial, the Petitioner then exhausted his administrative remedies by filing an administrative appeal. Here, the "records access appeals officer issued a final determination finding that the denial of petitioner's records request was proper under Public Officers Law § 87(2)(e)(ii) because administrative 'hearings and proceedings [were] still underway related to [the underlying] subject matter' of the request." Petitioner is now left with the option of accepting this determination or suing to obtain records under FOIL through a special proceeding, an Article 78.


Upon commencing the Article 78 Proceeding (typically done by what is called a Verified Petition under the CPLR, Civil Practice Law and Rules), however, the following turn of events occurred:

Prior to answering the petition, respondent advised petitioner that it had inadvertently cited Public Officers Law § 87(2)(e)(ii) as the basis for its denial, but that it had "appropriately withheld responsive records at that time pursuant to [Public Officers Law] § 87(2)(e)(i)" because "disclosure would have interfered `with law enforcement investigations or judicial proceedings.'" Respondent, however, informed petitioner that disclosure of the requested documents would "no longer" interfere with any ongoing law enforcement investigations or judicial proceedings.[1] As a result, in February 2020, respondent released to petitioner more than 7,500 of the 8,000 responsive documents it had identified, with some of the information in the disclosed records redacted. Respondent withheld the remaining responsive documents, citing several newly claimed FOIL exemptions.

Id. (external quotation marks omitted and internal citations preserved). What is not surprising is that the FOIL request upon which the Article 78 was filed is now considered "moot," the production eliminating the major reason for filing the special proceeding. What is surprising, however, is the determination that the Petition should have been amended and, thus, was dismissed as moot for that reason. Petitioner, however, was awarded reasonable attorney fees under FOIL as it no doubt substantially prevailed in receiving 7500 out of 8000 records responsive to the Freedom of Information Law Request. Certainly, the not-for-profit association representing funeral firms throughout the state was compensated for bringing the suit and I am sure Respondents are not going to make this mistake again.


The Third Department notes that "However, once respondent determined that the exemption was no longer applicable following a change in circumstances and released records previously withheld on that basis, resolution of the underlying legal issue would have had no bearing upon the rights of the parties." This means either Petitioner has to start all over again, perhaps the Respondents just giving the remainder of the records voluntarily at some point, or that an amendment had to occur to adjudicate the rights of the parties.


In the case discussed, MATTER OF NEW YORK STATE FUNERAL DIRECTORS ASSN. v. New York State Dept. of Health, 2021 N.Y. Slip Op 6897 (App. Div. 2021), the Supreme Court, Third Judicial Department instructs future litigants of the need to amend the Petition if the relief obtained from the initial FOIL request and litigation is satisfied:

As Supreme Court recognized, to the extent that petitioner sought review of respondent's February 2020 partial denial of its FOIL request, such review was precluded by its failure to amend the petition or commence a new CPLR article 78 proceeding after exhausting its administrative remedies (see Matter of Save Monroe Ave., Inc. v New York State Dept. of Transp., 197 AD3d 808, 809 [2021]; Matter of Barry v O'Neill, 185 AD3d 503, 505 [2020]; Matter of Cobado v Benziger, 163 AD3d 1103, 1105 [2018]). Accordingly, we affirm Supreme Court's determination to dismiss the petition as moot.

Id. (external quotation marks omitted and internal citations preserved). The case is dismissed.


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 info@CoryHMorris.com 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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