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Preaccident Records and Attorney's Fees under FOIL

Personal Injury Attorneys and Accident Lawyers often seek records relating to the injury. New York Injury Attorneys can get the records under public records law. Here, the wrongful death attorney/estate seeks records relating to the incident. Rather than wait for discovery, attorneys and litigants can seek records under the New York Freedom of Information Law, FOIL, the Public Officers Law Sections 84 to 89.

Here, the Petitioner, unfortunately the estate of the decedent person killed in an accident, was "seeking various categories of preaccident records pertaining to the limousine, including registration and inspection information, notices of violation, suspensions and any documents regarding prior administrative hearings involving the subject vehicle. "

Important here, for the Personal Injury Attorney, Accident Attorney or New York Lawyer seeking records, is that the production of records does not preclude an award of attorney's fees:

Initially, respondents advise that, in February 2021, they released to petitioner the documents requested in his FOIL requests...However, this development does not render moot respondents' challenge to Supreme Court's award of counsel fees and costs (Matter of Gannett Satellite Info. Network, LLC v New York State Thruway Auth., 181 AD3d 1072, 1074 [2020]; Matter of Associated Gen. Contrs. of N.Y. State, LLC v New York State Thruway Auth., 173 AD3d 1526, 1527 [2019]).

The respondent agency, the public entity from whom records was sought, unsuccessfully argues that there was a reasonable basis to withhold record. No doubt there will be further litigation to resolve whether attorney's fees awards will be precluded on a "reasonable basis" to withhold records and what exactly makes that reasonable. Here the Court makes the following evaluation in upholding the award of reasonable fees: "Although the National Transportation Safety Board has promulgated a federal regulation that prohibits parties to its investigations "from releasing information obtained during an investigation at any time prior to the [National Transportation Safety Board's] public release of information" (49 CFR 831.13[c]), a regulation is not a statute and, therefore, does not fall within the ambit of this narrowly construed exemption" and that "conclusory and speculative fashion, averred that the exemption justified denial of access to the requested records, without providing factual assertions from anyone with personal knowledge demonstrating that the requested records were actually compiled for law enforcement purposes,"

The case is MATTER OF VERTUCCI v. New York State Dept. of Transp., 2021 N.Y. Slip Op 3647 (3rd Dep't. 2021) and, citing our success in Matter of Dioso Faustino, affirms that "respondents failed to meet their burden of establishing that they had a reasonable basis for denying access to the requested records under any of the claimed exemptions, we find that Supreme Court properly granted petitioner's request for counsel fees and costs"

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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