Practitioners handling New York Freedom of Information Law (FOIL) demands should be aware of a forthcoming significant change in the law. In June, the Legislature passed a bill that would increase the ability of FOIL petitioners to recoup attorney fees from state and local agencies and municipalities that improperly refuse to respond to a FOIL request. A.1438B, 2015-2016 Reg. Sess. (N.Y. 2015). This bill was based on the input of open-government reformers seeking to strengthen the effectiveness of FOIL. The bill was not delivered to Governor Andrew Cuomo until Nov. 30. In an interesting twist, the governor vetoed the bill on Dec. 11 and then the very next day, Dec. 12, he issued an Executive Order critiquing the bill on procedural grounds related to the scope and application of the proposed statute.
While the governor did not direct any specific action regarding A.1438B, the Executive Order stressed that his administration is demanding more “comprehensive FOIL reform” that will “immediately advance transparency in government.” Executive Order No. 149. It is only a matter of time before this bill resurfaces. The governor did not critique the attorney fees component, and FOIL practitioners should be confident that the next version of the statute will sweepingly push courts toward awarding attorney fees. When the new law passes, courts will be considerably more inclined to award fees to the FOIL requester under certain circumstances.