The Third Department determined petitioner should be granted attorney’s fees because of respondent’s ignoring a FOIL request until an Article 78 proceeding was brought.  Even though respondent indicated the requested documents didn’t exist, the Third Department ruled that petitioner had “prevailed” in the FOIL proceedings and was therefore entitled to attorney’s fees:

By commencing this proceeding to force respondent to respond to its request, after a tortuous history, petitioner finally “received all the information that it requested and to which it was entitled in response to the underlying FOIL litigation, [and thus] it may  be said to have substantially prevailed within the meaning of Public Officers Law § 89 (4) ©” … .

The fact that full compliance with the statute was finally achieved in the form of a certification that the requested record could not be found after a diligent search, as opposed to the production of responsive documents, does not preclude a  petitioner from being  found  to have substantially prevailed, for the petitioner received the full and only response available pursuant to the statute under the circumstances. As we have emphasized, the counsel fee provision was added in recognition that persons seeking to force an agency to respond to a proper FOIL request “must engage in costly litigation,” and the statute was recently amended “in order to ‘create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL’”… . Matter of Legal Aid Society v NYS Department of Corrections …, 515257, 3rd Dept 4-4-13