ATTORNEY FEES LEGISLATION

On December 13, 2017, the Governor signed legislation, approved with overwhelming support by both houses of the State Legislature, to amend the Freedom of Information Law (FOIL) in a manner that encourages agencies to better comply with that statute.  In short, a court now has discretionary authority to award attorney fees to a member of the public when the court finds that s/he has substantially prevailed and the agency failed to respond to a request or appeal within the statutory time, and an award of attorney fees would be mandatory when the petitioner has substantially prevailed and the court finds that the agency had no reasonable basis for denying access.  The amendment to FOIL, codified as Chapter 453 of the Laws of 2017 reads as follows:

“Section 1. Paragraph (c) of subdivision 4 of section 89 of the public officers law, as amended by chapter 492 of the laws of 2006, is amended to read as follows:

(c) The court in such a proceeding: (i) may assess, against such agency involved, reasonable attorney's  fees  and  other  litigation  costs reasonably  incurred  by such person in any case under the provisions of this section in which such person has substantially prevailed, [when: i. the agency had no reasonable basis for denying access; or ii.] and when the agency failed to respond  to  a  request  or  appeal within  the  statutory  time; and (ii) shall assess, against such agency involved, reasonable attorney's fees and other litigation costs  reasonably  incurred  by  such person in any case under the provisions of this section in which such person has substantially prevailed and  the  court finds that the agency had no reasonable basis for denying access.

§2. This act shall take effect immediately.”

            The intent of this amendment is not to penalize the government for incidental or inadvertent behavior.  On the contrary, the goal is to encourage compliance with FOIL and discouraging unlawful behavior, thereby diminishing the need for or likelihood of litigation due to a failure to comply in a manner consistent with law.