Twenty Prominent New York and National Transparency Groups Call on Governor Cuomo to Strengthen Freedom of Information Law by Signing Attorneys’ Fees Bill

November 27, 2017

Press Release

Twenty Prominent New York and National Transparency Groups Call on Governor Cuomo to Strengthen Freedom of Information Law by Signing Attorneys’ Fees Bill

SEE MEMO AT BOTTOM

Twenty prominent New York and national transparency groups are publicly calling on Governor Cuomo to sign a bill that strengthens the Freedom of Information Law. The bill makes it easier for the public to win attorneys’ fees when they have won a court order instructing agencies to release public records.

The legislation, A.2750-A (Paulin) /S.2392-A (Gallivan), passed the legislature overwhelmingly earlier this year and is headed to the Governor’s desk for his consideration.
This bill amends the NYS Freedom of Information Law to require the mandatory awarding of attorneys’ fees to plaintiffs when the plaintiff substantially prevails on the record request and a court finds that an agency had no reasonable basis for denying access to public records.  Under current law, plaintiffs who do pursue records in court can seek attorneys’ fees but they are awarded at the judge’s discretion. To get their legal bills paid, the person seeking public records has to “substantially prevail” in getting the records released, and show the agency has “no reasonable basis” for denying the records.  The bill continues to allow judges to use their discretion in awarding attorneys’ fees in cases where agencies fail to meet deadlines for complying with FOIL.

A similar attorneys’ fees bill, A.1438-B (Paulin)/S.533-B (Gallivan), was vetoed by the Governor in 2015.  The legislation being delivered to the Governor this year seeks to address the issues raised by the Governor’s veto in 2015.

BetaNYC · Brennan Center at NYU Law · Citizens Union · Civic Hall · Common Cause NY · Consumers Union · First Amendment Coalition · Just Leadership USA · League of Women Voters of NYS · New York Press Club · Tri-State Transportation Campaign · National Freedom of Information Coalition · New York Civil Liberties Union · NYPIRG · Pace Environmental Litigation Clinic · Reinvent Albany · Represent.us · Riverkeeper · Sunlight Foundation ·  Tully Center for Free Speech

Memorandum of Support

A.2750A-2017 (Paulin) S.2392A-2017 (Gallivan)

Awarding attorneys’ fees in FOIL lawsuits

Title
An act to amend the public officers law, in relation to freedom of information requests and attorneys’ fees.

Summary
This bill amends the New York State Freedom of Information Law to require the mandatory award of attorneys’ fees to a plaintiff when the plaintiff substantially prevails on the record request and a court finds that an agency had no reasonable basis for denying access to public records.

Statement of Support
New York’s Freedom of Information Law is the single most important transparency tool the public has. Unfortunately, it is common for government agencies in New York to deny FOIL requests. Agencies are able to violate the Freedom of Information Law because they know it is prohibitively expensive for the public to go to court to order the release of public records.

Even when the public wins a record request and proves in court that an agency had no reasonable basis for denying access to public records, a judge may or may not decide to award attorneys’ fees. This means the public risks significant legal costs, even when they win a FOIL case. The high legal cost and the likelihood of not recovering fees means only a very small share of the FOILing public ever seeks to enforce FOIL via the courts.

This bill corrects this problem, and guarantees attorneys’ fees to petitioners who at trial substantially prevail on their records request and prove that an agency unreasonably denied access to public records. It also continues to allow judges to use their discretion in awarding attorneys’ fees in cases where agencies fail to meet statutory deadlines.

We strongly support A.2750A-2017/S.2392A-2017, and urge Governor Cuomo sign it into law.

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