BILL NUMBER: S5801

SPONSOR: LIU
 
TITLE OF BILL:

An act to amend the public officers law, in relation to the award of
reasonable attorneys' fees in certain proceedings

 
PURPOSE:

To Provide for the award of reasonable attorneys'. fees in FOIL
proceedings if the person is successful and in open meeting proceedings
to the successful party.

 
SUMMARY OF PROVISIONS:

Section 1. Paragraph (c) of subdivision 4 of section 89 of the public
officers law, as amended by chapter 453 of the laws of 2017, is amended
to read as follows:

(c) The court in such a proceeding shall 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 prevailed.

§ 2. Subdivision 2 of section 107 of the public officers law, as amended
by chapter 397 of the laws of 2008, is amended to read as 17 follows:

2. In any proceeding brought pursuant to this section, costs and reason-
able attorney fees shall be awarded by the court, to the successful
party.

Section 2: Effective date.

 
JUSTIFICATION:

According to the New York Coalition For Open Government there is an open
government crisis in New York State. The Coalition as a non-partisan,
nonprofit organization has documented through their reports large scale
noncompliance with open government laws. In random checks of local
governments across the state the Coalition in 2022 found that:

*72% of towns were not posting meeting documents online as required by
law.

*25% of towns were not posting meeting minutes or recordings online as
required by law.

*39% of counties failed to acknowledge a Coalition FOIL request within
five business days as required by law.

*28% of counties never acknowledged the Coalition FOIL request.

*73% of election boards failed to acknowledge a Coalition FOIL request
within five business days as required by law. It took an average of 49
days just to receive meeting minutes from county Board of Elections

Unlike other states, New York does not have an independent body with
enforcement powers to address violations of the Open Meetings Law and
Freedom, of Information Law. Other states also impose fines or criminal
charges for violations of open government laws, such penalties are not
available in New York. The only recourse available to the public in NY
is retaining an attorney to file an Article 78 proceeding and hope that
the court will award attorney fees.

New York's current attorney fee statute is weaker than many other states
and it is more difficult to obtain attorney fees when litigation is
successful. In California, Colorado, Delaware, Florida, Illinois, Loui-
siana, Michigan, Montana, New Jersey, Rhode Island, and Washington,
attorney fees are awarded if a party "prevails" in a lawsuit. New York's
statute requires that a party "substantially prevail" before attorney
fees will be awarded, which is a higher standard. After a plaintiff is
successful in an Article 78 action, then a whole debate occurs as to
whether the plaintiff "substantially prevailed" or not in order to
receive attorney fees. New York's statute has an additional hurdle in
that there must be an additional finding by the court that there was no
reasonable basis for the agency to deny the FOIL request. This addi-
tional finding is not required in the states listed above.

Under the Open Meetings Law, if an agency believed there was a reason-
able basis for holding an improper executive session then attorney fees
will not be awarded. Whether there was a reasonable basis or not if a
court determines that an executive session was improperly held a
successful plaintiff should be reimbursed for their attorney fees and
costs.

The only recourse for the public to address violations of open govern-
ment laws is through litigation, which is a difficult step for most
people to take. New York's current law makes it harder than other states
for a successful plaintiff to obtain attorney fees. There needs to be
some consequence for the large noncompliance with open government laws,
as documented by the New York Coalition For Open Government. Improving
New York's attorney fee statute will assist the public in being reim-
bursed attorney fees when they successfully prevail regarding an Open
Meetings Law and Freedom of Information Law violation.

 
LEGISLATIVE HISTORY:

New bill

 
FISCAL IMPLICATIONS:

To be determined.

 
EFFECTIVE DATE:
This act shall take effect immediately.