Justice Henry Zwack


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Competitive Enterprise Institute (CEI) sought production of documents from the attorney general (AG) under the Freedom of Information Law (FOIL) in this Article 78 proceeding. In a prior decision, the court found CEI substantially prevailed and the AG failed to fully explain the reason for denial of access, rejecting the AG’s conclusory claims the records fell within a statutory exemption. It directed the AG to provide responses that fully complied with FOIL’s intent and purpose. AG provided a supplemental response to CEI’s request, but against asserted the document was exempt from disclosure without specifying which asserted exemption applied. Yet, after finding the document was in the public domain since Aug. 2016, provided it to CEI, who moved for attorney fees and costs. The AG opposed, but the court ruled it was entirely within the AG’s ability to control or limit costs by providing the sought document before CEI was compelled to commence the Article 78 proceeding. Instead, “respondent stonewalled,” asserting exemptions, but failed to explain the reason for denial of access. Thus, while the court reduced attorney fees from nearly $27,000 sought, it granted CEI an award of over $20,000 in fees, and nearly $500 in litigation costs.