Recovering Attorneys’ Fees on Denied FOIL Requests

Governor Andrew Cuomo has signed legislation (A.2750-A/S.2392-A) to amend New York’s Public Officers Law to make it easier in certain circumstances for parties to recover attorneys’ fees and other litigation costs where an agency denies access to records sought through Freedom of Information Law (FOIL) requests. 

The new law provides that a court may assess “reasonable attorneys’ fees and other litigation costs reasonably incurred” where the petitioner “has substantially prevailed” and the agency failed to respond to a request or appeal within the statutory time. It further provides that the court shall assess reasonable attorneys’ fees and other litigation costs where the petitioner “substantially prevails” and the agency involved “had no reasonable basis for denying access to the records sought.”

 As noted by the bill sponsors, where a public agency denies disclosure of information sought through a FOIL request, a party may bring a judicial proceeding to challenge the denial—but this can be time-consuming and costly. The burdens of cost and time to take a government agency to trial often discourage people from exercising their right of access to public information. The purpose of the law is to encourage compliance with FOIL requests and thereby support greater transparency on the part of state government agencies. 

The Governor vetoed a prior iteration of this bill in 2015, because that version “would have required a court to assess attorneys’ fees against an agency when an agency denies access to [public records] in ‘material violation’ of FOIL,” but without defining what would constitute a material violation. Moreover, the prior bill would have eliminated the court’s discretion in determining whether to award fees.  In supporting the current version, the Governor noted that it “remedies these technical concerns by requiring the FOIL requestor to substantially prevail in the litigation as well as demonstrating the agency had no reasonable basis for withholding the records.” Thus, while he remains concerned about diminishing judicial discretion in these cases, he supports the current version in the name of increased government transparency. That said, however, the Governor expressed dismay that the current version “continues to perpetuate a fractured and inequitable system of transparency by only applying to the Executive, and intentionally excluding other branches of government,” and emphasized the continued “need for comprehensive FOIL reform” that “applies equally to both [the legislative and executive] branches of government, because transparency should be embraced by all.” He intends to pursue comprehensive FOIL reform in the next legislative session.