For nearly three years, the legislature and the governor have wrestled with changes to the Freedom of Information Law in efforts make an award of attorney fees mandatory when the agency unreasonably refuses to produce documents. That day has arrived, and government transparency reformers are smiling. On Dec. 13, 2017, Gov. Andrew Cuomo signed Assembly Bill 2750-A, making an award of attorney fees to the FOIL requester mandatory in a judicial proceeding when the court finds that the agency had “no reasonable basis” to deny access to the records. Before this amendment, the “reasonable basis” standard was in place, but the fee award was optional and was left to the discretion of the court overseeing the Article 78 proceeding. Formerly, a court could determine that the agency had acted unreasonably and not award attorney fees. Now if the conduct is found unreasonable, attorney fees must be imposed.

The amended Public Officers Law §89(c) controls two scenarios in which the court may award fees. First, a fee award is mandatory when (1) the petitioner substantially prevails (this requirement is unchanged) and (2) the agency had no reasonable basis for denying access. Pub. Off. Law §89(c). Second, the fee award remains discretionary when the petitioner substantially prevails and the agency has failed to respond to a request or appeal within the statutorily required time frame. Id.

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