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FOIL Petition Denied as Meritless

Freedom of Information Law ("FOIL") Requests should be reviewed by Courts when there is an unjustifiable denial of access. This FOIL case shows why tracking your requests, the production of records and having an experienced attorney in such matters makes a difference when litigation is brought pursuant to Article 78 of the Civil Practice Law and Rules.

In this case, McCreery's 2018 FOIL request asked DOT to produce "WalkNYC design guidelines and related instructional documentation," including any "Focus map, Focus map content standards, Overview map, Bike share, Select Bus Service [SBS], extent SBS content standards, Subway neighborhood map, [and] ancillary wayfinding products." The Court finds that "The DOT's 2015 and 2018 productions plainly account for all of the items in McCreery's 2018 FOIL request." Sometimes, as difficult as it may be to accept, the agency response is dispositive when all records responsive were produced or, alternatively, the agency claims there are no records responsive to the request.

Agencies should respond and produce records responsive to the request. When agencies fail to comply with FOIL, 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.

The Court, here, states the law in reviewing the litigation over the FOIL requests as follows:

"[w]hen reviewing the denial of a FOIL request, a court ... is to presume that all records of a public agency are open to public inspection and copying, and must require the agency to bear the burden of showing that the records fall squarely within an exemption to disclosure." Matter of Rauh v de Blasio, 161 AD3d 120, 125 (1st Dept 2018), quoting Matter of New York Comm. for Occupational Safety & Health v. Bloomberg, 72 AD3d 153, 158 (1st Dept 2010)

Id. (external quotation marks omitted and internal citations preserved). There can be no further compliance and, of course, no attorney's fees if the agency complies with the law.

The case is McCreery v. NEW YORK CITY DEPT. OF TRANSP., 2020 N.Y. Slip Op 34381 (Sup. Ct. 2020) where the Court determines that "the courts deemed that the relief sought in the second FOIL request had been rendered moot or academic....this case is similar to the cited precedent as McCreery's 2018 FOIL request was satisfied by the DOT's document productions in 2015 and 2018...[therefore]...dismissal is appropriate herein, notwithstanding the strong general policy that favors granting FOIL requests."

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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