senate Bill S108

Authorizes the court to issue reasonable attorneys' fees when an agency fails to respond to certain freedom of information requests

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Sponsor

Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 09 / Jan / 2013
    • REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
  • 08 / Jan / 2014
    • REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS

Summary

Provides that the court in such a proceeding shall assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this article when such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access to freedom of information requests.

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Bill Details

See Assembly Version of this Bill:
A2121
Versions:
S108
Legislative Cycle:
2013-2014
Current Committee:
Senate Investigations And Government Operations
Law Section:
Public Officers Law
Laws Affected:
Amd ยง89, Pub Off L
Versions Introduced in 2011-2012 Legislative Cycle:
S6270, A9407

Sponsor Memo

BILL NUMBER:S108

TITLE OF BILL:
An act
to amend the public officers law, in relation to freedom of information
requests and attorneys' fees

PURPOSE:
To require the court to issue reasonable attorney's fees when an
agency fails to respond to certain freedom of information requests
and discretion to issue reasonable attorney's fees in other
circumstances.

SUMMARY OF PROVISIONS:
Section 1. Allows a court discretion to award attorney's fees when a
party substantially prevails or when an agency fails to respond
within the statutory period.

Section 2. Requires the award of attorney's fees when agency denial of
information cannot be justified

Section 3. Effective date.

JUSTIFICATION:
When a public agency denies disclosure of information sought through a
Freedom of Information request, the only recourse for the denied
party is to initiate a judicial proceeding to challenge the denial. A
judicial proceeding to challenge an agency's denial of disclosure is
a costly endeavor in both time and money. The full proceeding can
take several months from the time of filing to the exhaustion of all
appeals. In addition, the cost of hiring an attorney can be
significant depending on the length and scope of the proceedings.
Under the current Freedom of Information law, the average individual
simply cannot afford to take a government agency to trial just to
exercise their right to access public information.

This bill will only require attorney's fees in the most egregious of
agency denials, when there is no reasonable basis for the denial i.e.
secrecy The courts will still retain the discretion to grant
attorney's fees when a petitioner substantially prevails but the
agency had a reasonable basis for the initial denial.

Open and responsive governments should not and cannot tolerate
secrecy. By providing attorney's fees for people who succeed in
challenging an agency's unlawful concealment of information, New York
continues to its commitment to transparency.

LEGISLATIVE HISTORY:
2011-12: S.6270/A.9407 Referred to Investigations and Governmental
Operations

EFFECTIVE DATE:
This act shall take effect immediately.


view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   108

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by Sen. GALLIVAN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Investigations and Govern-
  ment Operations

AN ACT to amend the public officers  law,  in  relation  to  freedom  of
  information requests and attorneys' fees

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraph (c) of subdivision 4 of section 89 of the  public
officers  law, as amended by chapter 492 of the laws of 2006, is amended
to read as follows:
  (c) The court in such a proceeding may  assess,  against  such  agency
involved,  reasonable attorney's fees and other litigation costs reason-
ably incurred by such person in any case under the  provisions  of  this
section in which such person has substantially prevailed[,] OR when[:
  i. the agency had no reasonable basis for denying access; or
  ii.  the  agency  failed  to respond to a request or appeal within the
statutory time] THE AGENCY FAILED TO RESPOND  TO  A  REQUEST  OR  APPEAL
WITHIN THE STATUTORY TIME.
  S 2. Subdivision 4 of section 89 of the public officers law is amended
by adding a new paragraph (d) to read as follows:
  (D)  THE  COURT IN SUCH A PROCEEDING SHALL ASSESS, AGAINST SUCH AGENCY
INVOLVED, REASONABLE ATTORNEYS' FEES AND OTHER LITIGATION COSTS  REASON-
ABLY  INCURRED  BY  SUCH PERSON IN ANY CASE UNDER THE PROVISIONS OF THIS
ARTICLE WHEN SUCH PERSON HAS SUBSTANTIALLY PREVAILED AND THE COURT FINDS
THAT THE AGENCY HAD NO REASONABLE BASIS FOR DENYING ACCESS.
  S 3. This act shall take effect immediately.


 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01979-01-3

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