State agencies and New York State municipalities must have a reasonable basis to deny Freedom of Information Law (“FOIL”) requests or they will be subjected to mandatory attorney’s fees when a denial is successfully challenged in court.

On December 13, 2017, the New York Legislature amended Section 89(4)(c) of the Public Officers Law to require courts to award attorney’s fees upon a successful challenge to the denial of a FOIL request if an agency lacks a reasonable basis for the denial. As set forth in Public Officers Law Section 86(3), an agency includes any state or municipal department or board, as well as public authorities, public corporations and any other governmental entity performing governmental functions.

Public Officers Law Section 89(4)(c) previously gave a court the discretion to award reasonable attorney’s fees to a person or organization when it successfully challenged an agency’s refusal to release information under FOIL and the agency either lacked a reasonable basis for refusing to release the information or the agency failed to respond to the FOIL request or appeal within the statutory timeframe.

The new amendment keeps in place the discretionary award of reasonable attorney’s fees if an agency failed to respond to a FOIL request within the statutory timeframe and the challenge is successful. However, the amendment now mandates that a court shall award reasonable attorney’s fees in situations where: (1) there is a successful challenge to an agency’s denial of a FOIL request, AND (2) the court finds that the agency lacked a reasonable basis for denying the FOIL request.

This amendment is similar to a bill which passed in the State Assembly (A1438-B) and the State Senate (S533-B) during the 2015-2016 Legislative Session, only to be vetoed by Governor Andrew Cuomo in Veto Message No. 278. In his Veto Message, Governor Cuomo stated that he vetoed the bill because he feared that the 2015-2016 bill could allow an agency to be assessed attorney’s fees by a court even if the agency was ultimately successful in defending against the challenge.  Governor Cuomo also rejected the language of the 2015-2016 bill because it required the payment of attorney’s fees if the agency denied a FOIL request in “material violation” of the FOIL laws but the bill failed to define a “material violation.”

Following the 2016 veto, the Committee on Open Government (the “Committee”) addressed the Governor’s concerns in its 2016 Report to the Governor and State Legislature. The Committee stated the amendment would serve as a tool to encourage agencies to comply with the FOIL laws and laid out their “two-tiered” approach to the award of attorney’s fees, which was intended to address the Governor’s concerns in his Veto Message. The “two-tiered” approach was ultimately copied almost verbatim in the new amendment signed into law on December 13th, 2017, and was cited in the Bill Memos from the State Assembly and the State Senate.

The amendment to Section 89(4)(c) became effective immediately upon its signing into law on December 13, 2017.

Going forward, agencies at the state and municipal level must be mindful of any denial of a FOIL request. If the agency cannot establish a reasonable basis for the denial and the person or organization successfully challenges the agency’s denial, the court presiding over the challenge will now be required to award reasonable attorney’s fees to the person or organization making the challenge.