"FOIL Practitioners: One Step Closer to Mandatory Attorney Fee Awards" article by Venable partner, Matthew McLaughlin, with assistance from associate, Benjamin Argyle, was published in New York Law Journal on February 23, 2018. Here is an excerpt:
On December 13, 2017, Governor Cuomo signed Assembly Bill 2750-A, making an award of attorneys' fees to the FOIL requester mandatory in a judicial proceeding when the court finds that the agency had "no reasonable basis" to deny access to the records. Before this amendment, the "reasonable basis" standard was in place, but the fee award was optional and was left to the discretion of the court overseeing the Article 78 proceeding. Formerly, a court could determine that the agency had acted unreasonably and not award attorneys' fees. Now if the conduct is found unreasonable, attorneys' fees must be imposed.
It remains to be seen whether courts will move toward the "good faith" and "at least arguable" end of the spectrum when analyzing fee requests, or if they will simply award attorneys' fees every time they disagree with the agency's claimed exemptions. So what can a FOIL practitioner take away from these cases, now that the fee award will be mandatory if the Article 78 court finds that the agency had no "reasonable basis" to withhold the requested documents? First, respond to the FOIL request, related correspondence, and appeal on time. Even if not determinative, failure to timely respond to and engage with the petitioner was clearly a factor in many courts' decisions to award fees. Second, agencies must do more than parrot the statutory exemptions—even though there is no requirement to do so in the text of the statute. Courts may be willing to permit agency mistakes and not award attorneys' fees in instances where the agency showed that its denial was reasonable, even if wrong. Therefore, the initial denial letter and the administrative appeal correspondence should provide at least some fact-based, context-specific reason for withholding or redacting documents. We recommend that the agency explain the harms that would befall individuals and agencies if documents were to be produced in the face of an exemption. Provide details. Discuss the nature of the information contained in the documents. Argue how the information fits within the exemption.
We recognize that this additional burden will not be welcomed by agencies already overwhelmed by thousands of requests per year. Nevertheless, FOIL officers will need to be better versed in the exemptions and will have to become readily conversant in how certain categories of information fit within exemptions. Following the amendment to the FOIL statute recently signed into law by Governor Cuomo, the days of a glib FOIL rejection have passed. Agencies that refuse to set forth a developed and well-reasoned basis for the application of an exemption run a much higher risk of being penalized by an award of attorneys' fees.