BILL NUMBER:  S2392

 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 attorneys' fees when an
agency denies access to freedom of information requests and the
petitioner has substantially prevailed and the court finds that the
agency involved had no reasonable basis for denying access to the
records sought.

 SUMMARY OF PROVISIONS :

Section 1 amends subdivision 4 of section 89 of the public officers
law to provide that the court in a proceeding related to a denial of
access to records pursuant to a freedom of information request may
asses, against such agency involved in the denial, reasonable
attorneys' fees and other litigation costs reasonably incurred by the
petitioner in any case under the provisions of this section in which
the petitioner has substantially prevailed and when the agency failed
to respond to a request or appeal within the statutory time.

In addition, section one provides that the court in such a proceeding
shall assess, against such agency involved, reasonable attorneys' fees
              

and other litigation costs reasonably incurred by the petitioner in
any case under the provisions of this section in which the petitioner
substantially prevails and the court finds that the agency involved
had no reasonable basis for denying access to the records sought.

Section 2 provides the effective date.

 JUSTIFICATION :

When a public agency denies disclosure of information sought through a
Freedom of Information Law (FOIL) request, one 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.
Often, people simply cannot afford to take a government agency to
trial to exercise their right to access public information.

This bill provides for an award of attorneys' fees to prevailing
parties in order to encourage compliance with FOIL and to minimize the
burdens of cost and time from bringing a judicial proceeding.

Specifically, this bill establishes a two- tiered approach. The first
tier Would permit a court to award attorneys' fees when a person
denied access has substantially prevailed and when the agency failed
to respond to a request or appeal within the statutory time. The
second tier would require an award of attorneys' fees when a person
denied access has substantially prevailed and the court finds that the
agency had no reasonable basis for denying access. Under this
approach, a petitioner would not receive an award of attorneys' fees
against a government agency when such agency prevails. Rather,
attorneys' fees would only be awarded when the petitioner
substantially prevails.

The Committee on Open Government recommends this two -tiered approach
in its 2016 annual report.

 LEGISLATIVE HISTORY :
S.6949-C of 2016 passed in the senate. A.9506-C of 2016, referred to
ways and means. Similar to A.1438B, same as S.533B of 2015, vetoed.
A.2121 of 2013 and 2014, referred to governmental operations. Same as
S.108 of 2013 and 2014, referred to investigations and government
operations. A.9407 of 2012, referred to governmental operations. Same
as S.6270 of 2012, referred to investigations and governmental
operations.

 FISCAL IMPLICATIONS :

None

 EFFECTIVE DATE :
Effective immediately