Matt McLaughlin and Ben Argyle authored "NY Should Unify Standards for Atty Fees Against State Agency" in Law360 on June 30, 2016. The article discusses two bills introduced in the recently ended New York legislative session that adopted a recommendation, offered by the authors in a December 2015 article in the New York Law Journal, to replace the "reasonableness" standard when determining FOIL attorneys' fees awards with the New York Civil Practice Law and Rules § 8601’s well-developed "substantially justified" standard.
After Governor Cuomo's December 2015 veto of a bill that would have left the "reasonableness" standard in place, there was a further opportunity for legislators to review the standard. Two subsequent bills followed the authors' recommendation to adhere to the "substantially justified" standard. The bills, which passed the Senate but stalled in committee in the Assembly, require a court to award attorneys' fees when a party substantially prevails, unless the court finds that the refusal of the agency to produce documents was substantially justified.