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A00950 Summary:

BILL NOA00950A
 
SAME ASSAME AS S01418-A
 
SPONSORSteck
 
COSPNSRSimon, Magnarelli, Kelles, Simone, Epstein
 
MLTSPNSR
 
Amd §§89 & 107, Pub Off L
 
Provides for the award of reasonable attorneys' fees in FOIL proceedings if the person is successful and in open meeting proceedings to the successful petitioner and against the public body.
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A00950 Actions:

BILL NOA00950A
 
01/08/2025referred to governmental operations
02/19/2025amend and recommit to governmental operations
02/19/2025print number 950a
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A00950 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A950A
 
SPONSOR: Steck
  TITLE OF BILL: An act to amend the public officers law, in relation to the award of reasonable attorneys' fees in certain proceedings   PURPOSE: To Provide for the award of reasonable attorneys' fees in FOIL proceedings if the person is successful and in open meeting proceedings to the successful party.   SUMMARY OF PROVISIONS: Section 1. Paragraph (c) of subdivision 4 of section 89 of the public officers law, as amended by chapter 453 of the laws of 2017, is amended to read as follows: (c) The court in such a proceeding shall assess, against such agency involved, reasonable attorney's fees and other litigation costs reason- ably incurred by such person in any case under the provisions of this section in which such person has prevailed. §2. Subdivision 2 of section 107 of the public officers law, as amended by chapter 397 of the laws of 2008, is amended to read as 17 follows: 2. In any proceeding brought pursuant to this section, costs and reason- able attorney fees shall be awarded by the court, to the successful party. Section 2: Effective date.   JUSTIFICATION: According to the New York Coalition For Open Government there is an open government crisis in New York State. The Coalition as a non-partisan, nonprofit organization has documented through their reports large scale noncompliance with open government laws. In random checks of local governments across the state the Coalition in 2022 found that: *72% of towns were not posting meeting documents online as required by law. *25% of towns were not posting meeting minutes or recordings online as required by law. *39% of counties failed to acknowledge a Coalition FOIL request within five business days as required by law. *28% of counties never acknowledged the Coalition FOIL request. *73% of election boards failed to acknowledge a Coalition FOIL request within five business days as required by law. It took an average of 49 days just to receive meeting minutes from county Board of Elections Unlike other states, New York does not have an independent body with enforcement powers to address violations of the Open Meetings Law and Freedom of Information Law. Other states also impose fines or criminal charges for violations of open government laws, such penalties are not available in New York. The only recourse available to the public in NY is retaining an attorney to file an Article 78 proceeding and hope that the court will award attorney fees. New York's current attorney fee statute is weaker than many other states and it is more difficult to obtain attorney fees when litigation is successful. In California, Colorado, Delaware, Florida, Illinois, Loui- siana, Michigan, Montana, New Jersey, Rhode Island, and Washington, attorney fees are awarded if a party "prevails" in a lawsuit.. New York's statute requires that a party "substantially prevail" before attorney fees will be awarded, which is a higher standard. After a plaintiff is successful in an Article 78 action, then a whole debate occurs as to whether the plaintiff "substantially prevailed" or not in order to receive attorney fees. New York's statute has an additional hurdle in that there must be an additional finding by the court that there was no reasonable basis for the agency to deny the FOIL request. This additional finding is not required in the states listed above. Under the Open Meetings Law, if an agency believed there was a reason- able basis for holding an improper executive session then attorney fees will not be awarded. Whether there was a reasonable basis or not if a court determines that an' executive session was improperly held a successful plaintiff should be reimbursed for their attorney fees and costs. The only recourse for the public to address violations of open govern- ment laws is through litigation, which is a difficult step for most people to take. New York's current law makes it harder than other states for a successful plaintiff to obtain attorney fees. There needs to be some consequence for the large noncompliance with open government laws, as documented by the New York Coalition For Open Government. Improving New York's attorney fee statute will assist the public in being reim- bursed attorney fees when they successfully prevail regarding an Open Meetings Law and Freedom of Information Law violation.   LEGISLATIVE HISTORY: New bill   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: This act shall take effect immediately.
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A00950 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         950--A
 
                               2025-2026 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 8, 2025
                                       ___________
 
        Introduced by M. of A. STECK, SIMON, MAGNARELLI, KELLES -- read once and
          referred  to  the  Committee  on  Governmental Operations -- committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee

        AN ACT to amend the public officers law, in relation  to  the  award  of
          reasonable attorneys' fees in certain proceedings
 
          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:
     5    (i) [may] shall  assess,  against  such  agency  involved,  reasonable
     6  attorney's  fees  and other litigation costs reasonably incurred by such
     7  person in any case under the provisions of this section  in  which  such
     8  person  has  [substantially]  prevailed, via voluntary production of any
     9  records after the commencement of litigation,  settlement  resulting  in
    10  production  of  any  records,  or  judgement  ordering production of any
    11  records, and when either:
    12    (A)  the agency failed to respond to a request or  appeal  within  the
    13  statutory  time;  [and  (ii) shall assess, against such agency involved,
    14  reasonable  attorney's  fees  and  other  litigation  costs   reasonably
    15  incurred by such person in any case under the provisions of this section
    16  in which such person has substantially prevailed and] or
    17    (B)  the court finds that the agency had no reasonable basis for deny-
    18  ing access.
    19    (ii) For the purposes of this paragraph, a reasonable basis for  deny-
    20  ing access means:
    21    (A) the agency reasonably relied upon a published opinion of an appel-
    22  late court of the state based on substantially similar facts; or
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03042-02-5

        A. 950--A                           2
 
     1    (B)  the  agency  reasonably  relied  upon  a published opinion by the
     2  committee on open government based on substantially similar facts.
     3    §  2.  Subdivision  2  of  section  107 of the public officers law, as
     4  amended by chapter 397 of the laws  of  2008,  is  amended  to  read  as
     5  follows:
     6    2.  In  any  proceeding  brought  pursuant  to this section, costs and
     7  reasonable attorney fees [may] shall be awarded by the  court,  [in  its
     8  discretion,] to the successful [party] petitioner and against the public
     9  body. [If a court determines that a vote was taken in material violation
    10  of  this  article,  or  that  substantial deliberations relating thereto
    11  occurred in private prior to such vote, the court shall award costs  and
    12  reasonable  attorney's  fees  to the successful petitioner, unless there
    13  was a reasonable basis for a  public  body  to  believe  that  a  closed
    14  session could properly have been held.]
    15    § 3. This act shall take effect immediately.
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