For several years, open government advocates have sought to amend New York's Freedom of Information Law (FOIL) to make an award of attorneys' fees mandatory, rather than discretionary, when a requester successfully sues an agency to obtain access to records. Such an amendment was narrowly defeated in the last legislative session, but new bills have recently been introduced in the Assembly and Senate. These new bills propose to use the "reasonable basis" standard originally proposed in the last session, rather than the "substantially justified" standard that was almost signed into law.

When a person requests documents from a government agency under FOIL, the agency can either disclose the documents or tell the requester that it is withholding the documents. N.Y. Pub. Off. Law § 87(2). If the requester believes that the agency is wrongly withholding the documents, the requester can prosecute an Article 78 proceeding to compel the agency to produce the records. N.Y. Pub. Off. Law § 89(4). If the requester is successful, she can ask the court to award attorneys' fees. Currently, the court has absolute discretion to determine whether to award these fees. Id.

Since 2009, the Committee on Open Government has proposed amending FOIL to make the award of attorneys' fees mandatory. In 2015, bills passed the Assembly and Senate that would make the fee award mandatory when the agency "had no reasonable basis for denying access." A. 1438B, 2015-2016 Reg. Sess. (N.Y. 2015). When Governor Cuomo vetoed these bills, this article's authors advocated in the New York Law Journal that lawmakers should use the opportunity to discard the "reasonable basis" standard, and adopt a better-developed "substantially justified" standard. Matthew T. McLaughlin, Legislature Considers Change to FOIL to Mandate Attorney Fees, New York Law Journal, Dec. 17, 2015. In May 2016, legislators adopted that recommendation and sought an amendment utilizing the "substantially justified" standard first proposed in the authors' New York Law Journal article. See A.9506A, 2015-2016 Reg. Sess. (N.Y. 2016); S.6949A, 2015-2016 Reg. Sess. (N.Y. 2016). The bills proposing the "substantially justified" standard passed in the Senate, but stalled in committee on the last day of the legislative session. See A.9506C, 2015-2016 Reg. Sess. (N.Y. 2016); S.6949C, 2015-2016 Reg. Sess. (N.Y. 2016); see also Matthew T. McLaughlin, Benjamin P. Argyle, NY Should Unify Standards for Atty Fees Against State Agency, Law360, June 30, 2016.

The same sponsors have introduced new bills in the 2017-2018 legislative session, containing almost identical language. See A.2750, 2017-2018 Reg. Sess. (N.Y. 2017); S.2392, 2017-2018 Reg. Sess. (N.Y. 2017). However, the new bills revert to the old "reasonable basis" standard and ignore the advances of the last legislative session. We will keep you updated as the FOIL law continues to develop.