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PETITIONER WAS ENTITLED TO ATTORNEY’S FEES IN THIS FOIL PROCEEDING; THE RESPONDENTS DID NOT PROVIDE THE BULK OF THE REQUESTED DOCUMENTS UNTIL AFTER THE ARTICLE 78 WAS BROUGHT; RESPONDENTS DID NOT PRESENT AN ADEQUATE EXCUSE FOR FAILING TO INITIALLY DISCLOSE THE REQUESTED DOCUMENTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner was entitled to attorney’s fees as the prevailing party in this FOIL proceeding. It was only after petitioner brought an Article 78 petition that the respondents provided the bulk of the requested documents:

… [T]he respondents did not timely respond to the petitioner’s FOIL request … . The first response, which consisted of four pages of materials, failed to address three of the four enumerated categories of material the petitioner sought. It was not until after the commencement of this proceeding that the respondents provided a significant number of additional documents responsive to the FOIL request. Under the circumstances of this case, the petitioner was the “substantially prevailing” party … . …

… [T]he respondents did not have a reasonable basis for initially denying the petitioner access to the responsive materials. Although a limited amount of material was reasonably withheld based on attorney-client privilege, the “petitioner’s legal action ultimately succeeded in obtaining substantial unredacted post-commencement disclosure responsive to h[is] FOIL request” … . Matter of McNerney v Carmel Cent. Sch. Dist., 2022 NY Slip Op 02799, Second Dept 4-27-22

Practice Point: Respondents didn’t disclose the bulk of the documents described in the FOIL request until the Article 78 proceeding was started and did not have an adequate excuse for the initial incomplete response. Petitioner was entitled to attorney’s fees as the prevailing party.

 

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