Permits assessment of certain fees and costs upon wrongful denial of access to records under the freedom of information law when either the person has substantially prevailed, or if the agency failed to respond within the statutory time.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5118
SPONSOR: Thiele TITLE OF BILL:
An act to amend the public officers law, in relation to permitting
assessment of certain fees and costs upon wrongful denial of access to
records under the freedom of information law
PURPOSE:
This bill is intended to clarify certain provisions in the Freedom of
Information Law (FOIL) thereby demonstrating a continued affirmation by
the state to the principles of open government and public accountabil-
ity.
SUMMARY OF PROVISIONS:
Section 1 amends paragraph (c) of subdivision 4 of Section 89 of the
Public Officers Law to provide that in an Article 78 proceeding brought
to review a FOIL request, the court may assess against the public agency
involved, reasonable attorney's fees and litigation costs when the
plaintiff has substantially prevailed or when the agency failed to
respond to a request or appeal within the statutory time; and shall
assess against the public agency involved, reasonable attorney's fees
and litigation costs when the plaintiff has substantially prevailed and
the agency lacked a reasonable basis in law for withholding the record.
Section 2.is the effective date.
JUSTIFICATION:
FOIL provisions advance the premise that people have a right to know the
process of governmental decision making. This bill enforces such a right
by discouraging public agencies from denying public access to records
unless a reasonable basis in law exists. The enactment of this bill
would provide the court with broader discretionary authority to award
fees thereby discouraging public bodies from arbitrarily or capriciously
denying access to records. People should not be forced to spend money
and time on judicial proceedings, to gain access to records that agen-
cies should have disclosed in the first. place.
LEGISLATIVE HISTORY:
2021-2022: S.2004-A / A.6459-A
2019-2020: S.7835
2017-2018: A.3743
2015-2016: A.2741
2013-2014: A.4368
STATE AND LOCAL FISCAL IMPLICATIONS:
The long-term effect of this bill should result in savings for the state
and local governments. The assessment of attorney's fees and costs
against public agencies should encourage them to grant access to public
records-since denial without a reasonable basis in law could result in a
significant expenditure.
Moreover, the assessment of fees and litigation costs under specific
circumstances could increase the likelihood of settlements of disputes
without court involvement and encourage reliance on the Committee on
Open Government for advice or as a mediator in a dispute.
EFFECTIVE DATE:
This act shall take effect on the first of September next succeeding the
date on which it shall become law.
STATE OF NEW YORK
________________________________________________________________________
5118
2023-2024 Regular Sessions
IN ASSEMBLY
March 2, 2023
___________
Introduced by M. of A. THIELE, CARROLL -- read once and referred to the
Committee on Governmental Operations
AN ACT to amend the public officers law, in relation to permitting
assessment of certain fees and costs upon wrongful denial of access to
records under the freedom of information law
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (c) of subdivision 4 of section 89 of the public
2 officers law, as amended by chapter 453 of the laws of 2017, is amended
3 to read as follows:
4 (c) The court in such a proceeding: (i) may assess, against such agen-
5 cy involved, reasonable attorney's fees and other litigation costs
6 reasonably incurred by such person in any case under the provisions of
7 this [section] article in which such person has substantially prevailed,
8 [and when] or in which the agency failed to respond to a request or
9 appeal within the statutory time; and (ii) shall assess, against such
10 agency involved, reasonable attorney's fees and other litigation costs
11 reasonably incurred by such person in any case under the provisions of
12 this [section] article in which such person has substantially prevailed
13 and the court finds that the agency had no reasonable basis for denying
14 access. Nothing contained herein shall be construed to abridge or deny
15 any right or remedy available under article eighty-six of the civil
16 practice law and rules.
17 § 2. This act shall take effect on the first of September next
18 succeeding the date on which it shall have become a law.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09491-01-3
