Matter of Aron Law, PLLC v New York City Fire Department
Attorneys and Parties
Brief Summary
Public records and government transparency under the Freedom of Information Law (FOIL), including fee-shifting when agencies delay disclosure.
Denied petitioner’s request for attorney’s fees and litigation costs, finding the agency had a reasonable basis for initially not providing the records.
The denial of attorney’s fees and litigation costs.
Petitioner substantially prevailed because the agency produced the FOIL log only after the Article 78 proceeding was filed, and the agency lacked a reasonable basis for denial; it failed to timely assert or substantiate that no log existed and provided no affidavit from a person with knowledge. See Public Officers Law § 89(4)(c)(ii) [FOIL fee-shifting where requester substantially prevails and the agency lacked a reasonable basis for denying access].
Background
In November 2019, petitioner requested the New York City Fire Department’s FOIL log under the Freedom of Information Law (Public Officers Law art 6) [New York statute governing public access to agency records]. For over three years, the agency missed multiple self-imposed deadlines and did not disclose records. After petitioner filed an administrative appeal in December 2022 claiming constructive denial, the agency stated on February 7, 2023, that it was backlogged and would respond in 30 days but did not. Petitioner commenced a CPLR article 78 proceeding on March 31, 2023 [special proceeding to challenge administrative action]. In moving to dismiss, the agency for the first time argued it had no duty to create documents that do not exist, but it then produced the FOIL log after litigation commenced.
Lower Court Decision
The Supreme Court, Kings County (Feb. 20, 2024), denied attorney’s fees and litigation costs, effectively dismissing that portion of the petition on the ground that the agency had a reasonable basis for not initially providing the records.
Appellate Division Reversal
Reversed insofar as appealed from, with costs. The court held petitioner substantially prevailed because the agency disclosed the requested records only after the proceeding was filed, and the agency had no reasonable basis for denying access. The agency did not timely assert that no FOIL log existed and submitted no affidavit from a person with knowledge to support that claim. The court granted attorney’s fees and litigation costs under Public Officers Law § 89(4)(c)(ii) [FOIL fee-shifting where requester substantially prevails and the agency lacked a reasonable basis for denying access] and remitted for a determination of the amount.
Legal Significance
Affirms that prolonged agency delay followed by post-litigation disclosure triggers fee-shifting under FOIL when the petitioner substantially prevails and the agency lacked a reasonable basis. Agencies must timely articulate and substantiate exemptions or nonexistence of records with competent proof; unsupported assertions raised for the first time in litigation are insufficient.
When an agency delays FOIL disclosure for years and only produces records after an Article 78 filing, the requester has substantially prevailed and is entitled to attorney’s fees and costs unless the agency can show a reasonable, well-supported basis for denial.