Champions of government oversight notched a significant win yesterday as New York Governor Andrew Cuomo signed legislation strengthening that state's Freedom of Information Law (FOIL). The new legislation makes it easier for requesters stonewalled by agencies to recover attorney's fees for challenging denials in court by making such recovery mandatory in some cases, and hopefully will encourage other states to follow suit.

As media organizations and other frequent seekers of government information well know, obtaining documents through open records laws can be challenging. Denials are often given with little or no explanation, and administrative appeals are only successful sometimes. Meaningful review of an agency denial often requires the requester to sue the agency—a time-consuming and expensive process.

Before yesterday, New York's FOIL allowed requesters who "substantially prevailed" in a FOIL case to recover fees, but only when the agency had "no reasonable basis" for denying the request or when the agency failed to respond at all. But critically, the award of fees was discretionary. Even successful litigants often go home empty-handed, and obtaining fees sometimes requires additional motion practice.

The new law makes the award of fees to victors mandatory, but only when the court finds there was no reasonable basis for denying access. (Discretionary awards of fees are still available when agencies fail to respond.) This change is important: The assurance of recovery for blatantly improper withholdings promises to make litigation a much more feasible strategy for cash-strapped media and other organizations that could not otherwise justify the expense of filing a lawsuit. It also promises to make agencies think twice before issuing a baseless denial. That is why groups like the Reporters Committee for Freedom of the Press came out in favor of the law, arguing that it would "encourage worthy enforcement actions by requesters while simultaneously discouraging frivolous claims." States across the country take different approaches on whether fee awards for public records cases should be mandatory or discretionary.

To be sure, demonstrating that an agency had "no reasonable basis" for a denial is still a significant hurdle, and many courts have managed to rule that agencies did have a reasonable basis for denial even in cases those agencies ultimately lost. The federal FOIA, by contrast, is not as rigid—however, awards there are discretionary.

This significant amendment to New York's FOIL will hopefully encourage other states to adopt mandatory fee awards. New York's legislation was several years in the making. In 2015, Governor Cuomo vetoed a different, but related, fee award bill.

Ballard Spahr's Media and Entertainment Law Group frequently litigates public records actions in federal and state courts across the country on behalf of media and corporate clients.


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