For decades, the New York Freedom of Information Law (FOIL) has allowed citizens access to public documents, and the statute has made enormous strides toward promoting government transparency. Open government groups have nonetheless long demanded stronger versions of FOIL and have endeavored to make an award of attorneys' fees mandatory in instances where a court finds that a government agency has improperly withheld documents sought by a citizen pursuant to a FOIL request.
As described in the last article in our four-part series, in December 2017, the FOIL statute was amended to make attorneys' fees mandatory when an agency's refusal to produce documents is unreasonable. While courts seem to have little discretion in the matter, we note that the award is not absolutely mandatory, because the court must find that the withholding was unreasonable. Government agencies need to be timely and cautious when considering and responding to FOIL requests. Below we outline the development of the revised statute as chronicled in our series.
Legislature Considers Change to FOIL to Mandate Attorney Fees (December 17, 2015)
After Governor Cuomo rejected a bill submitted by the legislature revising the FOIL statute, it nevertheless became clear that the bill would resurface and would contain a provision that attorneys' fees would be mandatory in instances where the government agency "unreasonably" withheld the documents sought by a FOIL requester. The authors advised the legislature to consider discarding the vaguely ambiguous "unreasonable" standard for a better one in which fees would be awarded only when an agency lacked "substantial justification" for withholding documents.
NY Should Unify Standards for Attorney Fees Against State Agency (June 30, 2016)
When two draft bills were introduced in May 2016 in a new effort to reform FOIL, the legislature adopted our recommendation to apply the "substantial justification" standard when measuring whether to award attorneys' fees against an agency.
New York FOIL Bill Reappears: Attorneys' Fee Standard Shifts Again (February 22, 2017)
In the shifting sands of Albany draftsmanship, the FOIL bills stalled in committee. Then, later in the 2017-2018 legislative session, the sponsors reintroduced new bills. This time, however, the standard for awarding attorneys' fees drifted back to one of "reasonableness." The standard of "substantial justification" had been washed away.
FOIL Practitioners: One Step Closer to Mandatory Fee Awards (February 23, 2018)
After nearly three years of wrangling, the legislature and the governor's office agreed on revisions. In December 2017, the FOIL statute was amended to make attorneys' fees mandatory when the agency's refusal to produce documents is unreasonable. While courts seem to have little discretion in this determination, we note in this article that the award is not absolutely mandatory, because the court must find that the withholding was unreasonable—a factual finding. We also note in this article how an agency might persuade a court that its refusal to produce documents was reasonable even if wrong. The statute continues to allow for "reasonable mistake," and we expect the jurisprudence to develop in the realm of tolerance for reasonable mistakes by agencies in the FOIL world.