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.

The amendment to §89(c) has a history marked by twists, stops, and detours. When the governor vetoed a substantially similar law in December 2015, these authors urged the legislature to use the opportunity to rid the FOIL statute of the then poorly developed “reasonable basis” standard. See M. McLaughlin, “Legislature Considers Change to FOIL to Mandate Attorney Fees,” N.Y.L.J. (Dec. 17, 2015); M. McLaughlin & B. Argyle, “NY Should Unify Standards for Atty Fees Against State Agency,” Law360 (June 30, 2016). While the amendment to FOIL retains the “reasonable basis” standard, courts in the intervening two years have created a larger body of case law addressing when the failure to produce FOIL documents is unreasonable. This article explores most of the FOIL-based cases from the last two years that touch upon a possible award of attorney fees. All of the cases discussed in this article predate the recent amendment, but they are the corpus of precedent that courts will rely upon when taking measurement of agency reasonableness.

Unfortunately for FOIL practitioners, even the new jurisprudence does not provide clear markers of what an agency has to do to show that it had a “reasonable basis” and thereby avoid the fee award penalty. Instead, many courts simply award fees in every case in which petitioner “substantially prevailed,” without any separate analysis of whether an agency had a “reasonable basis” for withholding the records. Some have declined to award fees, for procedural reasons unrelated to the “reasonable basis” analysis. The three courts that have declined to award fees utilized three different standards to reach a common outcome.

We start with Madeiros v. N.Y.S. Educ. Dept., 30 N.Y.3d 67 (2017), not because it analyzes the “reasonable basis” standard, but because this decision from the Court of Appeals highlights the way in which different courts have treated an agency's untimely response in the fee award analysis. First, we note that the amended statute does not change the threshold requirement that the Article 78 petitioner must “substantially prevail” in the proceeding to be eligible for the fee award. N.Y. Pub. Off. Law § 89(c). This requirement is satisfied when the court rules against the agency and orders disclosure of a majority of the requested documents. But Madeiros makes clear that an agency cannot avoid the fee award merely by voluntarily disclosing the requested documents during the pendency of the Article 78 proceeding. Madeiros indicates that if the agency denies the initial request, thus forcing the requester to commence an Article 78 action, fees may be appropriate, even if the agency capitulates after the petition has been filed.

In Madeiros, the primary issue on appeal was whether the agency would have to disclose the information redacted from its response to the Article 78 petitioner. 30 N.Y.3d at 70. The trial court, the Third Department, and the Court of Appeals substantively affirmed the agency's redactions, which were made to documents produced only after the petitioner commenced the Article 78 proceeding. Id. at 78-80. The Third Department held that because the petitioner therefore did not “substantially prevail,” the petitioner was not entitled to the fee award. Id. The Court of Appeals reversed because the agency “made no disclosures, redacted or otherwise,” prior to commencement of the Article 78 proceeding. Id. Therefore, the Court of Appeals reasoned, because “petitioner's legal action ultimately succeeded in obtaining” the requested documents—even if redacted—petitioner “substantially prevailed within the meaning of” the FOIL statute. Id. To conclude otherwise would permit an agency to avoid the fee award in situations where it refused to disclose documents until after the FOIL requester finally commenced an Article 78 proceeding. Id. That dilatory practice will not be permitted. The Court of Appeals did not grant the fee award outright, but remitted that issue to the trial court “to exercise its discretion” in analyzing whether the agency had a “reasonable basis” for originally withholding the documents. Id. at 80.

The Second Department in Acme Bus Corp. v. Cnty. of Suffolk reversed the trial court and awarded attorney fees. 136 A.D.3d 896 (2d Dept. 2016). The agency had refused to disclose RFP documents to an unsuccessful bidder until negotiations with the successful bidder concluded with a signed contract. Id. at 897. The agency later disclosed the documents, shortly after petitioner commenced the Article 78 proceeding. Id. The court also noted that the agency had not timely decided the petitioner's appeal. Id. The court held that the requested documents did not fit any of the statutory exemptions to production found in the FOIL statute, and therefore should have been produced. Id. at 897-98. Therefore, the court concluded, “respondents had no reasonable basis for denying access.” Id. at 897. In other words, the court did not engage in any analysis beyond deciding that the records did not fall within a FOIL exemption. (We note that the court went out of its way to observe that the agency had not provided any evidence in support of its original argument for withholding.) Id. at 898.

The Second Department reached a similar result in South Shore Press v. Havemeyer, 136 A.D.3d 929 (2d Dept. 2016). The agency there had initially responded to the FOIL request within the statutorily required time by stating that the request was “unduly broad or voluminous,” “would interfere with the day-to-day operations of an already heavily burdened department,” and indicated that it would take additional time “to continue compiling responsive documents.” Id. at 930. Petitioner commenced the proceeding four months later, when the agency still had not produced documents. Id. The trial court granted the petition and ordered production of the documents, but declined to award fees. Id. The Second Department reversed the trial court and awarded fees, holding that none of the agency's excuses fell within a statutory exemption to production. Id. As in Acme Bus, the Second Department in South Shore did not separate out its analysis of the merits (i.e., whether an exemption applied) from its “rational basis” analysis.

The decision in Gallogy v. City of New York is in the same vein. 51 Misc. 3d 296 (Sup. Ct. N.Y. Cnty. 2016). In Gallogy, the agency did articulate a “legitimate basis” for withholding the documents—but did so for the first time in response to the Article 78 proceeding. Id. at 302. Even though the agency had a legitimate basis to withhold production, its failure to articulate that basis in a timely manner—before the commencement of the Article 78 proceeding—induced the court to award attorney fees. Id.

In contrast, in most decisions in the last two years that refused to award fees, the court relied on procedural or merit-based reasons arising from exemptions in the FOIL statute. For example, in Livson v. Town of Greenburgh, the Second Department affirmed the trial court's denial of the fee award only because petitioner did not properly appeal that part of the decision. 141 A.D.3d 658, 661 (2d Dept. 2016). Likewise, in Berger v. N.Y.C. Dept. of Health & Hygiene, the court denied the fee request because petitioner lost on the merits, as the court determined that the FOIL demand should have been denied. 137 A.D.3d 904, 907 (2d Dept. 2016). The First Department reversed the trial court and withdrew the fee award in Grabell v. N.Y.C. Police Dept. when it determined that the petitioner did not in fact “substantially prevail” on the merits. 139 A.D.3d 477, 479 (1st Dept. 2016); see also Cook v. Nassau Cnty. Police Dept., 140 A.D.3d 1059, 1060-61 (2d Dept. 2016) (same reasoning and result). Courts will also decline to award attorney fees if petitioner did not, in fact, incur attorney fees. See Collins v. N.Y.C. Police Dept., No. 101554/2016, 2017 WL 1591134, at *6 (N.Y. Sup. Ct. N.Y. Cnty. April 27, 2017) (declining to award attorney fees to pro se petitioner); Jacobson v. Ithaca City Sch. Dist., 53 Misc. 3d 1091, 1099 (Sup. Ct. Tompkins Cnty. 2016) (same result, despite the fact that petitioner was himself an attorney).

In only three cases in the last two years have New York courts declined to award fees to prevailing petitioners. Each of these cases is instructive. In N.Y. Times Co. v. N.Y.S. Exec. Chamber, the court concluded its 20-plus-page analysis of the proceeding before it by declining to award fees, because the responding agency's position was “at least arguable.” 57 Misc. 3d 405, 426 (Sup. Ct. Albany Cnty. 2017). Similarly, in Kosmider v. Whitney—a case weighed down with the complicated question of whether a provision in the Election Law prohibited disclosure of certain records requested under FOIL—the court denied the fee request despite otherwise ruling in favor of petitioner, because respondents demonstrated the “extraordinary efforts” and “exhaustive research and analysis” they undertook to determine whether the Election Law exemption applied. 46 N.Y.S.3d 403, 362-63 (Sup. Ct. Essex Cnty. 2017). “In sum,” the court concluded, “respondents should not be penalized for a good faith interpretation” of the Election Law, even if wrong. Id. (emphasis added). Lastly, in Laveck v. Village Bd. of Trustees, the Third Department declined to award fees despite ruling that the responding agency could not redact the requested documents. 145 A.D.3d 1168, 1171 (3d Dept. 2016). After an extensive analysis of the claimed exemption, the court held that “the redactions were made in good faith.” Id. This triad of cases demonstrates that courts will not punish the agency with an award of attorney fees in instances where the agency was wrong, but not “unreasonably wrong.” If the agency can show that it applied reason and some modicum of diligence in its analysis behind the FOIL request denial, courts tend to be lenient and refrain from an award attorney fees.

It remains to be seen whether courts will move toward the “good faith” and “at least arguable” end of the spectrum when analyzing fee requests, or if they will simply award attorney fees every time they disagree with the agency's claimed exemptions. So what can a FOIL practitioner take away from these cases, now that the fee award will be mandatory if the Article 78 court finds that the agency had no “reasonable basis” to withhold the requested documents? First, respond to the FOIL request, related correspondence, and appeal on time. Even if not determinative, failure to timely respond to and engage with the petitioner was clearly a factor in many courts' decisions to award fees. Second, agencies must do more than parrot the statutory exemptions—even though there is no requirement to do so in the text of the statute. Courts may be willing to permit agency mistakes and not award attorney fees in instances where the agency showed that its denial was reasonable, even if wrong. Therefore, the initial denial letter and the administrative appeal correspondence should provide at least some fact-based, context-specific reason for withholding or redacting documents. We recommend that the agency explain the harms that would befall individuals and agencies if documents were to be produced in the face of an exemption. Provide details. Discuss the nature of the information contained in the documents. Argue how the information fits within the exemption.

We recognize that this additional burden will not be welcomed by agencies already overwhelmed by thousands of requests per year. Nevertheless, FOIL officers will need to be better versed in the exemptions and will have to become readily conversant in how certain categories of information fit within exemptions. Following the amendment to the FOIL statute recently signed into law by Governor Cuomo, the days of a glib FOIL rejection have passed. Agencies that refuse to set forth a developed and well-reasoned basis for the application of an exemption run a much higher risk of being penalized by an award of attorney fees.

Matthew T. McLaughlin is partner-in-charge of the New York office of Venable. He is also a commercial litigator with a FOIL practice. Benjamin P. Argyle, an associate in the firm's New York commercial litigation practice group, assisted in the preparation of this article.