BILL NUMBER: S5174
SPONSOR: JACKSON
 
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 - Amend and Recommit to Rules/A.6459-A - Amend and
Recommit to Governmental Operations
2019-2020: S.7835 - Advanced to Third Reading
2017-2018: A.3743 - Referred to Governmental Operations
2015-2016: A.2741 - Referred to Governmental Operations
2013-2014: A.4368 - Referred to Governmental Operations
 
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.

Statutes affected:
S5174: 89 public officers law, 89(4) public officers law