The Third Department, modifying Supreme Court, determined petitioner was entitled to costs and fees associated with his FOIL request for information about the confidential informant in the case which led to petitioner’s conviction and incarceration. The state police did not timely respond to petitioner’s requests and eventually provided two police reports and a finding that the remainder of the requested information was exempt from disclosure. The “costs and fees” issue was still viable despite the fact that the proceeding was moot. The Third Department found that the petitioner had substantially prevailed and the state police had not met the time requirements associated with responding to petitioner’s requests:
A court is authorized to award a petitioner “reasonable [counsel] fees and other litigation costs reasonably incurred” where he or she has “substantially prevailed” in the FOIL proceeding and, as relevant here, “the agency failed to respond to a request or appeal within the statutory time” … . “A petitioner ‘substantially prevail[s]’ under Public Officers Law § 89 (4) (c) when [he or she] ‘receive[s] all the information that [he or she] requested and to which [he or she] is entitled in response to the underlying FOIL litigation'”… , regardless of whether “full compliance with the statute was finally achieved” in the form of disclosure, a certification that responsive documents were exempt from disclosure or some combination thereof … . Significantly, the voluntariness of an agency’s disclosure after the commencement of a CPLR article 78 proceeding will not preclude a finding that a litigant has substantially prevailed … . Matter of Cobado v Benziger, 2018 NY Slip Op 04996, Third Dept 7-5-18
FREEDOM OF INFORMATION LAW (FOIL) (DESPITE THE FACT THAT THE PETITION SEEKING REVIEW OF A FREEDOM OF INFORMATION LAW (FOIL) WAS MOOT, PETITIONER HAD SUBSTANTIALLY PREVAILED AND WAS ENTITLED TO COSTS AND FEES, MATTER REMITTED (THIRD DEPT))/PUBLIC OFFICERS LAW (FREEDOM OF INFORMATION LAW (FOIL), DESPITE THE FACT THAT THE PETITION SEEKING REVIEW OF A FREEDOM OF INFORMATION LAW (FOIL) WAS MOOT, PETITIONER HAD SUBSTANTIALLY PREVAILED AND WAS ENTITLED TO COSTS AND FEES, MATTER REMITTED (THIRD DEPT))/FEES AND COSTS (FREEDOM OF INFORMATION LAW (FOIL), DESPITE THE FACT THAT THE PETITION SEEKING REVIEW OF A FREEDOM OF INFORMATION LAW (FOIL) WAS MOOT, PETITIONER HAD SUBSTANTIALLY PREVAILED AND WAS ENTITLED TO COSTS AND FEES, MATTER REMITTED (THIRD DEPT))