Freedom of Information Advocates Encouraged by “Agents of the City” Court Decision
NYS Appeals Court Cites New Attorneys’ Fee Law Strengthening FOIL
Statement
Reinvent Albany applauds today’s decision by the Appellate Division of the First Judicial Department ordering Mayor de Blasio to disclose emails between himself and advisors at Berlin Rosen. The emails were requested under the state Freedom of Information Law (FOIL) by Grace Rauh of NY1 and Yoav Gonen of the NY Post.
We were also happy to see the court award the plaintiffs attorneys’ fees based on a 2017 law that we, and our coalition partners at the News Publishers Association and NYCLU, fought for years to get passed. The court established important precedent when it correctly cited the new FOIL attorneys’ fee law, Public Officers Law § 89[4] [c][ii]
As first hand participants in the legislative process, we can say that the court correctly writes that there is:
“…an unmistakable legislative intent that attorney’s fees are to be assessed against an agency when the other party has substantially prevailed and the agency had no reasonable basis for denying access.”
Below is the Court’s full explanation for ordering the Mayor to pay reporters’ attorneys’ fees:
Next, turning to the issue of attorney’s fees, Supreme Court granted petitioners attorney’s fees under an earlier enactment of Public Officers Law § 89(4)(c), which provided that the court “may assess” attorney’s fees and costs. The court providently exercised its discretion in granting attorney’s fees.
We note that during the pendency of this appeal, the Legislature amended the provision which now provides that the court “shall 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 and the court finds that the agency had no reasonable basis for denying access” (Public Officers Law § 89[4][c][ii] . The language of the statute is mandatory and not precatory, if the statutory requirements are met (see McKinney’s Consolidated Laws of NY, Book 1, Statutes § 171, Comment at 334 [1971 ed] [“where the word may’ appearing in an act was changed to shall’, the court would construe the amendment as being mandatory”]). Significantly, this evinces an unmistakable legislative intent that attorney’s fees are to be assessed against an agency when the other party has substantially prevailed and the agency had no reasonable basis for denying access.
Here, there is no dispute that the petitioner has substantially prevailed (see Matter of Madeiros v New York State Educ. Dept 30 NY3d 67, 78-81 [2017]). Both in this appeal and in Supreme Court, the respondents have been directed to produce the documents requested by petitioners on the ground that the agency exemption does not apply.