BILL NUMBER:  S4359

 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


 SUMMARY OF SPECIFIC PROVISIONS :
This bill amends the Public Officers Law to provide that in an Article
78 proceeding brought to review the Freedom of Information Law (FOIL),
the court may in its discretion 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; or the record is
substantially disclosed following the initiation of such proceeding
brought to review the administrative denial of access to materials but
prior to a judicial determination.

The above provisions do not abridge or deny any right or remedy
available under article eighty-six of the civil practice law and
rules.

 JUSTIFICATION :
The FOIL statute advances 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 public access to
records. The bill removes the requirement that the court must decide
if a record was "of clearly significant interest to the general
public." In several reports to the Governor and the Legislature, the
Committee on Open Government recommended that in view of judicial
interpretations of FOIL, the condition that the record sought must be
of "clearly significant interest to the general public" be removed.
The Committee has advocated and the Court of Appeals in

 CAPITAL NEWSPAPERS V. BURNS , 67 NY 2d 562 (1986), has confirmed the
principle that accessible records should be equally available to any
person without consideration to status or interest. It is not relevant
with respect to the rights of access whether a record is of clearly
significant interest to the general public or only of interest to an
individual. Since the FOIL grants access to all records, except those
demonstrated by an agency to fall within the purview of the stated
exemptions, the only issue raised by an agency in receipt of a FOIL
request involves the extent, if any, that the records in question fall
within one or more of the grounds for denial. The proposed amendment
states as one ground for the awarding of attorney's fees and
litigation costs, that the plaintiff must "substantially prevail."
This is consistent with the language found under Article 86 of the
Civil Practice Law and Rules which provides that fees and expenses may
be given to plaintiffs or petitioners who prevail in whole or in
substantial part against the state or its officials in a civil
proceeding.

Finally, the second provision delineated in the bill (the record is
disclosed following the initiation of such proceeding but prior to a
judicial determination) is in response to an unreasonable result that
occurred in WILLIAM J. KLINE AND SON, INC. V. FALLOWS, 478 NYS 2d 524
(1984). In this case, after the original request for access to records
was denied and the denial was upheld on appeal, the applicant sought
judicial relief by initiating a costly Article 78 proceeding.  The
agency disclosed the records before the court heard the arguments.
Since the controversy was considered moot, the court found that the
petitioner did not prevail and hence, did not award legal fees. It is
unfair to preclude an award under such circumstances in view of the
expenditures of time and money incurred by an applicant who might
otherwise prove that he/she was wrongfully denied access.  People
should not be forced to spend money and time on judicial proceedings,
for example in KLINE, to gain access to records that agencies should
have disclosed in the first place.

 PRIOR LEGISLATIVE HISTORY :
1997:  A.228 - (Feldman) Held in Gov. Ops.
1998:  A.228 - (Feldman) Held in Rules
1999:  A.4153 - Referred to Gov. Ops.
2000:  A.4153 - Referred to Rules
2001:  A.297  - Rules
2002:  A.297  - Gov. Ops.
2003:  A.2261 - Gov. Ops.
2004:  A.2261 - Rules

 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 an 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 :
The first of September next succeeding the date on which it shall
become law.