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CITY AGENCY FAILED TO DEMONSTRATE THE REPORT SOUGHT BY PETITIONERS WAS SUBJECT TO THE INTRA-AGENCY EXEMPTION FROM THE FREEDOM OF INFORMATION LAW (FOIL) BECAUSE THE AGENCY DID NOT PRESENT PROOF THE PREPARER OF THE REPORT WAS RETAINED BY THE AGENCY, SUPREME COURT SHOULD HAVE CONSIDERED PETITIONERS’ REQUEST FOR ATTORNEY’S FEES AS MANDATED BY A 2017 AMENDMENT TO FOIL (FIRST DEPT).

The First Department determined Supreme Court correctly held that the respondent, NYC Dept of Parks & Recreation, was not entitled to the intra-agency materials exemption from the Freedom of Information Law (FOIL) because the respondent did not demonstrate that it retained a third party, “Owens Studio,” to prepare the report sought by petitioners. The First Department went on to find that the statute obligated Supreme Court to address their request for attorney’s fees:

… [R]espondent failed to establish that it retained Owens Studio for purposes of preparing the report, a necessary prerequisite for invocation of the intra-agency materials exemption for documents prepared by an outside consultant … . The affidavit submitted by respondent on this point is on its face conclusory. The fragmentary documents to which respondent’s affiant points demonstrate only that Owens Studio was retained to perform some work. They do not on their face establish that respondent retained Owens Studio to prepare the subject study and report, nor establish what Owens Studio was retained to do, nor, in particular, establish that respondent itself, as opposed to some other entity, retained Owens Studio to prepare the report … . …

The attorneys’ fees provision of FOIL was amended, effective December 13, 2017, to provide that the court “shall” award counsel fees where the agency has no basis for denying access to the material sought. The legislative history of the recent amendment notes that “[o]ften, people simply cannot afford to take a government agency to trial to exercise their right to access public information,” and that an award of attorney’s fees is intended to “encourage compliance with FOIL and to minimize the burdens of cost and time from bringing a judicial proceeding” … . Matter of Reiburn v New York City Dept. of Parks & Recreation, 2019 NY Slip Op 03295, First Dept 4-30-19

 

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