July 22, 2018

July 20, 2018

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New York Governor Bolsters Freedom of Information Law

Champions of government oversight notched a significant win yesterday as New York Governor Andrew Cuomo signed legislation strengthening that state's Freedom of Information Law (FOIL). The new legislation makes it easier for requesters stonewalled by agencies to recover attorney's fees for challenging denials in court by making such recovery mandatory in some cases, and hopefully will encourage other states to follow suit.

As media organizations and other frequent seekers of government information well know, obtaining documents through open records laws can be challenging. Denials are often given with little or no explanation, and administrative appeals are only successful sometimes. Meaningful review of an agency denial often requires the requester to sue the agency—a time-consuming and expensive process.

Before yesterday, New York's FOIL allowed requesters who "substantially prevailed" in a FOIL case to recover fees, but only when the agency had "no reasonable basis" for denying the request or when the agency failed to respond at all. But critically, the award of fees was discretionary. Even successful litigants often go home empty-handed, and obtaining fees sometimes requires additional motion practice.

The new law makes the award of fees to victors mandatory, but only when the court finds there was no reasonable basis for denying access. (Discretionary awards of fees are still available when agencies fail to respond.) This change is important: The assurance of recovery for blatantly improper withholdings promises to make litigation a much more feasible strategy for cash-strapped media and other organizations that could not otherwise justify the expense of filing a lawsuit. It also promises to make agencies think twice before issuing a baseless denial. That is why groups like the Reporters Committee for Freedom of the Press came out in favor of the law, arguing that it would "encourage worthy enforcement actions by requesters while simultaneously discouraging frivolous claims." States across the country take different approaches on whether fee awards for public records cases should be mandatory or discretionary.

To be sure, demonstrating that an agency had "no reasonable basis" for a denial is still a significant hurdle, and many courts have managed to rule that agencies did have a reasonable basis for denial even in cases those agencies ultimately lost. The federal FOIA, by contrast, is not as rigid—however, awards there are discretionary.

This significant amendment to New York's FOIL will hopefully encourage other states to adopt mandatory fee awards. New York's legislation was several years in the making. In 2015, Governor Cuomo vetoed a different, but related, fee award bill.

Copyright © by Ballard Spahr LLP

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About this Author

Jeremy Kutner, Litigation, Entertainment, Media, New York
Associate

Mr. Kutner represents media clients in a wide range of content-related matters, including cases involving defamation, access to courts and sealed documents, intellectual property, and freedom of information laws.

Previously, he was the First Amendment Fellow at the New York Times Company, where he counseled reporters on legal issues, litigated and argued access, reporter’s privilege, and public records cases in state and federal court, and provided prepublication review.

Mr. Kutner has also worked as a news reporter...

212- 850- 6107
David A. Schulz, Litigation, New York, Media & Entertainmnet
Senior Counsel

David A. Schulz has defended the rights of journalists and news organizations for more than 35 years, litigating libel, privacy, access, and newsgathering claims in 20 states.

His regular clients include international news organizations, national and local newspapers, broadcast and cable television networks, station owners, magazine and book publishers, and internet content providers of all types.

More recently, Mr. Schulz has litigated issues concerning government secrecy in many contexts. He was tapped to provide advice on the WikiLeaks and Edward Snowden disclosures, has pursued reporters’ access rights at Guantanamo Bay, and has represented a number of journalists in federal leak investigations.

Mr. Schulz is a Clinical Lecturer at Yale Law School and serves as Co-Director of the Media Freedom and Information Access (MFIA) Clinic at Yale. The clinic supports robust investigative journalism and government transparency by providing pro bono representation to journalists and nonprofit organizations on access to government information, newsgathering, digital privacy, and free speech. Mr. Schulz has supervised MFIA Clinic students since the clinic was established in 2009.

EDUCATION

Yale Law School (J.D. 1978)

Yale University (M.A. Economics 1976)

Knox College (B.A. 1974, magna cum laude)

ADMISSIONS

New York

District of Columbia

U.S. Supreme Court

U.S. Courts of Appeals for the Second, Third, Fourth, Ninth, and 10th Circuits

U.S. Court of Appeals for the District of Columbia Circuit

U.S. District Court for the District of Columbia

U.S. District Courts for the Southern, Eastern, Western, and Northern Districts of New York

212.850.6103