June 2013 – New York County Awards Attorney’s Fees

Missed Deadlines

New York County Supreme Court handed down a judgment on June 11th awarding the Exoneration Initiative, a non-profit organization, $49,276.94 in attorney fees payable by the New York City Police Department after the NYPD “repeatedly missed deadlines imposed by [the Freedom of Information Law] for responding to petitioner’s requests” The Exoneration Initiative v. N.Y.C. Police Dep’t., N.Y. Cnty., (June 2013).

Under FOIL, Public Officers Law §89(4)(c), when a petitioner substantially prevails, a court may assess attorney’s fees and litigation costs against an agency when:

“i. the agency had no reasonable basis for denying access; or

ii. the agency failed to respond to a request or appeal within the statutory time.”

The Exoneration Initiative is an organization that investigates, and when appropriate, litigates claims of innocence on behalf of indigent incarcerated persons. In this case, it was investigating Richard Rosario’s innocence after a 1996 murder conviction. When the NYPD disclosed but a few of the responsive records, the Exoneration Initiative brought an Article 78 proceeding, subsequently survived a motion to dismiss on July 18, 2012, and prevailed on the main issue on March 15, 2013 (id., N.Y. Cnty., July 2012; id., N.Y. Cnty., March 2013).

This recent finding was made after the Exoneration Initiative sought $50,056.94 in attorney’s fees. The court rejected both arguments of the NYPD, that the delay in responses was due to the large volume of FOIL requests that it receives, and that responding to these requests would “divert resources from its core mission.” The court wrote that its contention would be better directed at the legislature. The other argument rejected by the court involved the claim that the hourly rates sought for the attorneys were too high. The court determined, however, that the rates are “well within the range of hourly rates charged by private sector attorneys of similar experience in that community.”

In considering the amount of the award, the court agreed that it was unnecessary for the Exoneration Initiative to send three lawyers for certain court appearances. Since two would have been sufficient, the fee requested was cut by $780.

The NYPD has stated that it will appeal both the initial holding and the award of attorney fees.