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The New York Court of Appeals has strictly construed the attorney fee provision in the state Freedom of Information Law (FOIL), providing a substantial shield for government entities that wrongly deny citizens records to which they are entitled. Beechwood Restorative Care Center v. Signor, No. 136. New York’s high court unanimously decided that the provision making attorney fees available only when information is improperly withheld on a matter of “significant interest to the general public” is a high hurdle to overcome. The judges also said that the state Equal Access to Justice Act is not applicable to FOIL proceedings. The case is rooted in a 1999 state Department of Health (DOH) probe of a Rochester, N.Y.-area skilled nursing facility. The investigation, based on allegations that care at the Beechwood Restorative Care Center was substandard, forced the facility to shut down in July 1999. Its operating certificate was revoked a few months later. Beechwood and one of its general partners, Brook Chambery, submitted 17 FOIL requests between August 1999 and February 2001, seeking hundreds of documents. The state initially turned over about 600 pages of documents, but largely ignored 12 of the FOIL demands. Beechwood had to initiate a proceeding under Article 78 of New York Civil Practice Law and Rules to obtain another 800 documents, many of which would form the basis for a federal civil rights action against DOH employees. The petitioners then attempted to recoup, under FOIL and the Equal Access to Justice Act, more than $50,000 in attorney fees. An intermediate New York appellate court held that attorney fees were not available because Beechwood had failed to meet its burden of establishing that the particular records disclosed were clearly of significant interest to the general public, a prerequisite to recovery of attorney fees under FOIL. The New York Court of Appeals affirmed. Writing on behalf of the court, Judge Victoria A. Graffeo referred to the legislative history in concluding that in order to qualify for attorney fees, the records at issue must be of more than potential interest to the general public. She noted that then-Governor Hugh L. Carey had vetoed a version of the legislation that contained a less strict public interest standard. Graffeo sought to differentiate between the public’s interest in the closure of a skilled nursing facility, and its interest in records related to the health department’s actions that resulted in that closing. “[T]he public’s interest in closure of the facility does not by itself establish that any records relating to DOH’s actions are also of interest to society,” Graffeo wrote, adding in a footnote that the fact that the undisclosed documents were used in a lawsuit against the government neither precludes nor establishes public interest. Significantly, the court found that though DOH had improperly stonewalled until a court made it comply with the statute-the situation the attorney fee provision was drafted to address-attorney fees are still not available in this case. The court did, however, agree with Beechwood, and disagree with the lower court, in holding that an award of attorney fees in such a case is a question of law. The attorney general had maintained that it was a factual question, subject only to limited review by the high court. The lower court agreed; the high court did not. The high court also said that the Equal Access to Justice Act provides no relief. That law, enacted seven years after the attorney fee provision in FOIL, permits “the recovery of counsel fees and other reasonable expenses in certain actions against the state.” Graffeo said that the act provides relief only when another statute does not provide for attorney fees. Here, since FOIL contains a counsel fee provision, the Equal Access to Justice Act is inapplicable.

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