ACP News

2012 | 2011

2012 News

April 3, 2012 decision by Court of Appeals offers authority to gain access to records or portions thereof during the course of criminal prosecution, within limitations

February 2012 - Questions and Answers Regarding Records Discussed at Open Meetings
Disclosure of Records Scheduled to be Discussed during Open Meetings

Effective February 2, 2012:  Disclosure of Records Scheduled for Discussion at Open Meetings
The purpose of the amendment is simple:  those interested in the work of public bodies should have the ability, within reasonable limitations, to see the records scheduled to be discussed during open meetings prior to the meetings.

February, 2012 - Recent Appellate Division decision regarding the specificity of motions for entry into executive session
The Open Meetings Law requires that a motion for entry into executive session must indicate the subject or subjects to be discussed.

2011 News

2011 Annual Report to the Governor and State Legislature (pdf)
The Committee’s Annual Report setting forth legislative recommendations and a summary of the Committee’s activities for the year.

Report: Evaluating the Importance of Technology and the Role of Information Providers within Local Governments in New York. (doc)
Megan Sutherland, Candidate for M.S. at SUNY Albany Graduate School of Information Science and Policy, interned for the Committee in the summer of 2011, collecting and analyzing information regarding the use of online resources by local government agencies.

Freeman Receives Lifetime Achievement Award from NYS Associated Press Association

Recent Decisions Regarding the Award of Attorney’s Fees under FOIL

            For nearly twenty-five years, FOIL stated that a court could award attorney’s fees when it was found that (1) the person denied access “substantially prevailed”; (2) the agency had no reasonable basis for withholding the records; and (3) the records were of “clearly significant interest to the general public.”  The purpose of that provision, according to the sponsor the bill, was to overcome “the ‘sue us’ attitude” of some agencies, a stance found to be contrary to FOIL’s legislative intent.

            It became clear, however, that a court’s authority to award attorney’s fees was limited and weak.  If an agency stonewalled and denied access without justification, and if the records were important only to the person requesting them, attorney’s fees could not be awarded because the records would not have been significant to the public.

            That requirement was eliminated in 2006, and  the courts were given expanded authority to award attorney’s fees when (1) the person denied access substantially prevailed and (2) the court finds either that (a) the agency had no reasonable basis for denying access or (b) the agency failed to respond to a request in a timely manner as specified in FOIL.

            Those more recent standards were recently considered in depth for the first time in two decisions rendered in July by the Appellate Division, Third Department.

            New York Civil Liberties Union v. City of Saratoga Springs involved a request made in April, 2009, for records relating to the use of tasers.  The request was denied, and NYCLU initiated an Article 78 proceeding in October.  Soon after the commencement of the lawsuit, the parties attempted to negotiate a settlement.  Those efforts were unsuccessful, which led NYCLU to request a conference with Supreme Court.  Following the conference, the City disclosed portions of the records.  That led to a determination by the Court that the records must be disclosed in their entirety.  Although the Court found that each condition necessary to award attorney’s fees was met, the request for an award was rejected.

            The Appellate Division agreed with NYCLU’s contention that the lower court’s denial of a request for an award of attorney’s fees represented an abuse of discretion.  While the Appellate Division confirmed that an award is discretionary, it referred to the legislative intent regarding the 2006 amendment, which was “create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL.” 

            In reversing the initial holding, it was found that the lower court’s characterization of resolution of the controversy as “essentially informal and voluntary” was contrary to the facts.  The Court pointed to “tactics to delay disclosure”, missing deadlines, failures to return telephone calls, and most importantly, to the reality that “complete disclosure was made – more than a year after the initial request – only after further intervention by the court and an order directing [the City] to provide an unredacted copy of the records.”.  It was emphasized that “all of the prerequisites for such an award were met and [the City] neglected to offer any excuse for their failure to timely respond to [NYCLU’s] request’(emphasis added by the Court).  The Court added that “in view of the fact that it was only through the use of the judicial process that [NYCLU] was able to obtain the required disclosure and {the City] evinced a clear disregard of the public’s right to open government – we fund that the denial of [NYCLU’s] request for an award of counsel fees was an abuse of discretion.”

            The other decision, New York State Defenders Association v. New York State Police, involved a request for “policies relating to electronic recording of custodial interviews, interrogations, confessions and statements.”  The State Police rejected the request in its entirety, but after a judicial proceeding was initiated, all of the records that were requested were attached to its response to the petition.  Based on that disclosure, it was contended that the matter was moot, and the Supreme Court dismissed the petition and the request for attorney’s fees.

            The Appellate Division, however, rejected the claim by the State Police that the Defenders Association did not substantially prevail, stating that “to allow [an agency] to automatically forestall an award of counsel fees simply by releasing the requested documents before asserting a defense would contravene the very purpose of FOIL’s fee-shifting provision.”  On the contrary, because the State Police disclosed the records sought, the applicant “may be said to have substantially prevailed.”

            It was also found that the State Police had no reasonable basis for issuing a “blanket denial” of the request.  To argue that there was a reasonable basis for denying access was “belied by the virtually immediate release of the requested information upon commencement of this proceeding.”  Because the lower court based its denial of an award of attorney’s fees “on its erroneous conclusion that the statutory prerequisites were not satisfied”, the Appellate Division referred the matter back to the lower court to determine whether such an award would be proper.

            In short, the handwriting appears to be on the wall: agencies cannot delay disclosure of records or deny access to records unless there is a good reason to do so.  If they do delay or withhold records without justification, it is possible and perhaps likely that the person requesting the records may be awarded attorney’s fees payable by the agency.

Public Bodies Required to Allow Photographing, Recording and Broadcasting of Public Meetings

The Legislature amended Open Meetings Law §103 to confirm judicial decisions concerning photographing and recording open meetings of public bodies.  In short, the courts determined that anyone may record open meetings, so long as use of a recording device is not disruptive or obtrusive.  Public bodies are now required by law to allow meetings to be photographed, broadcast, webcast or otherwise recorded and/or transmitted by audio or video means.  The new provision also states that public bodies may adopt reasonable rules governing the use of cameras and recording devices during open meetings, in which case such rules must be conspicuously posted and provided to those in attendance upon request.

In our opinion, if the public body does not adopt written rules governing such issues, it would not be precluded from imposing reasonable procedures in order to effectuate the efficient functioning of government. The Committee has prepared model rules available here.