December 16, 2009

The staff of the Committee on Open Government is authorized to issue advisory opinions.  The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.


            We are in receipt of your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from a town.  Specifically, you were denied access to records that are required to be made public, and were forced to bring a legal proceeding pursuant to Article 78 of the Civil Practice Law and Rules.  In response to your complaint, the town provided the requested records and moved to dismiss.  The court granted the town’s motion to dismiss and refused to consider an award of costs and reasonable attorney’s fees.  As you indicated, “The Town’s view will potentially eviscerate FOIL, because a municipality need release nothing at all until a citizen expends the money for a lawsuit, and then all the municipality need to is THEN release the documents and claim ‘mootness.’”   We agree, because an award of attorney’s fees is completely discretionary, there is very little incentive to comply with the law.  In this regard, we offer the following comments.

            Over the years, the Committee on Open Government has recommended to the Governor and the State Legislature that the Freedom of Information Law be amended to include stronger enforcement provisions.  Prior to legislative changes in 2006, situations arose in which denials of access to records were unreasonable, and in which those seeking records faced inordinate delays.  The problem was that, if a lawsuit was initiated, a condition precedent to the award of attorney’s fees involved the need for a court to find that the records sought were of clearly significant interest to the general public.  Often, however, the records at issue might have affected one or perhaps few members of the public, and in those cases, there was no possibility that those persons could recover the cost of going to court, even if an agency failed to comply with law.

            Under the 2006 amendments, when a person initiates a judicial proceeding pursuant to the Freedom of Information Law and substantially prevails, a court has the discretionary authority to award costs and reasonable attorney’s fees when the agency had no reasonable basis for denying access to records, or when the agency failed to comply with the time limits for responding to a request.  While this legislation, coupled with 2005 amendments involving the time for responding to requests enhanced compliance with the Freedom of Information Law, in our opinion it remains inadequate for precisely the reason that you have raised. 

            Nevertheless, it has been held that a person who challenges a denial of access to records “substantially prevails” in a judicial proceeding “where the initiation of the proceeding brought about the release of the request [Kalish v. City of New York, NY Slip Op 31958(U), Supreme Court, Queens County, June 30, 2009].  And, we note a similar case from earlier this year in which the court was sympathetic, yet because the petitioner was pro se, awarded only costs (Siani v. Clark, 23 Misc.3d 1123, 886 NYS2d 69 [New York, 2009]).

            Finally, the Committee’s 2009 Annual Report to the Governor and State Legislature, which will be finalized and delivered shortly, sets forth the Committee’s recommendation that attorney’s fees be mandatory, as follows:

“Recommendation: Mandatory Award of Attorney’s Fees Under FOIL

            The advisory opinions rendered by the Committee are persuasive and serve to educate and encourage compliance with open government laws, but they do not guarantee compliance.

            The FOIL provides a court with discretionary authority to award attorney’s fees in a lawsuit brought under FOIL.  When a person denied access substantially prevails and the court determines that the agency had no reasonable basis for denying access or failed to comply with the time limitations for responding to requests or appeals, a court may order an award. 

            The Committee recommends that the award of attorney’s fees be mandatory, not discretionary, when a court finds the conditions described to be present.”

            On behalf of the Committee on Open Government, we hope that this is helpful to you.



                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director
cc: Dennis Michaels