From: Jobin-Davis, Camille (DOS)
Sent: Monday, June 20, 2011 10:05 AM
Subject:    RE: Attorney's Fees awarded in Article 78 challenge to FOIL denial

Dear ,

The provision of the FOIL regarding attorney's fees is section 89(4)(c) -- the entire text of subsection 4 follows:

4. (a) Except as provided in subdivision five of this section, any person
denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought. In addition, each agency shall immediately forward to the committee on open government a copy of such appeal when received by the agency and the ensuing determination thereon. Failure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial.

(b) Except as provided in subdivision five of this section, a person denied access to a record in an appeal determination under the provisions of paragraph (a) of this subdivision may bring a proceeding for review of such denial pursuant to article seventy-eight of the civil practice law and rules. In the event that access to any record is denied pursuant to the provisions of subdivision two of section eighty-seven of this article, the agency involved shall have the burden of proving that such record falls within the provisions of such subdivision two. Failure by an agency to conform to the provisions of paragraph (a) of this subdivision shall constitute a denial.

(c) The court in such a proceeding may assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed, when:

i. the agency had no reasonable basis for denying access; or ii. the agency failed to respond to a request or appeal within the statutory time.

Therefore, attorney's fees may only be awarded by a court, and solely with respect to an Article 78 proceeding.

The following is a paragraph taken from FOIL-AO-17758, which I found by
googling "attorney's fees" at the FOIL Advisory Opinion Index page:

"in direct response to your question regarding “any new remedies under the revised Freedom of Information Law”, we note that while the Article 78 proceeding is still the statutory enforcement mechanism, the law was amended in 2006, broadening the authority of the courts to award attorney's fees when government agencies fail to comply with the law.  Under the amendments, when a person initiates a judicial proceeding under 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."

Please let me know if you have further questions -



Camille S. Jobin-Davis, Esq.
Assistant Director
NYS Committee on Open Government
Department of State
99 Washington Ave, Suite 650
Albany NY 12231

Tel: 518-474-2518
Fax: 518-474-1927