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After a FOIL request is made and an appeal follows, if the agency still persists in refusing to provide records pursuant to the New York Freedom of Information Law, judicial review vis-a-vis an Article 78 proceeding is the next logical step. The office handles such proceedings and, if necessary, appeals from a Supreme Court denial.  

 

The Article 78:  While typically an agency action is reviewed under an “arbitrary and capricious” standard, a Supreme Court’s application of that standard to an agency's refusal to disclose the subject records under the New York Freedom of Information Law is incorrect. When reviewing the denial of a FOIL request, a court must apply a far different rule. It is to presume that all records of a public agency are open to public inspection and copying, and must require the agency to bear the burden of showing that the records fall squarely within an exemption to disclosure. See Public Officers Law § 89(5)(e); Matter of Markowitz v. Serio, 11 N.Y.3d 43, 50–51, 862 N.Y.S.2d 833, 893 N.E.2d 110 (2008); Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 566, 505 N.Y.S.2d 576, 496 N.E.2d 665 (1986); Matter of Bahnken v. New York City Fire Dept., 17 A.D.3d 228, 229–230, 794 N.Y.S.2d 312 (2005), lv. denied 6 N.Y.3d 701, 810 N.Y.S.2d 415, 843 N.E.2d 1155 (2005). This more exacting standard of appellate review is sometimes necessary to bring vital agency records and documentation forward.  

 

Indeed, the Supreme Court (FOIL Article 78 proceeding) should "start with the premise that a governmental body seeking an exemption from the disclosure requirements of FOIL is required to establish its right thereto" Matter of Pasik v. State Bd. of Law Examiners, 102 AD2d 395, 398 (1st Dep't. 1984) (citing Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575 (1980). "Only where the material requested falls squarely within the ambit of one of [the] statutory exemptions may disclosure be withheld." Matter of Fink v. Lefkowitz, 47 NY2d 567, 571 (1979). The agency is supposed to establish that FOIL does not apply.

 

The legislative purpose in the Freedom of Information Law is mainly accomplished through the definitions of "Agency" and "Record." An agency comprehensively includes "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation … or other governmental entity performing a governmental or proprietary function for the state or [a local government]" Public Officers Law § 86(3). "Record" is broadly defined to include "any information kept, held, filed, produced or reproduced by, with or for an agency … in any physical form whatsoever" Public Officer Law § 86(4); Newsday, Inc. v. Empire State Dev. Corp., 98 NY2d 359, 362 (2002). The judiciary is presumptively open and one could watch court proceedings or copy (certain) court records. FOIL was created for agency records that may not be as available as judiciary records. An Article 78 is the tool utilized to have judicial review of a FOIL request. 

 

In forcing a FOIL Article 78 proceeding, even an appeal to an appellate court, a FOIL record seeker may be entitled to reasonable attorney's fees. "The award of attorney's fees is intended to 'create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL' " Matter of Acme Bus Corp. v County of Suffolk, ___AD3d___, 2016 NY Slip Op 01171, *1 (3d Dep't. 2016) (quoting Matter of NY Civ. Liberties Union v City of Saratoga Springs, 87 AD3d 336, 338 (3rd Dep't. 2011)). Although you may bear the burden if you lose, a respondent agency has a strong deterrent against persisting in refusing to produce FOIL records that should be accessible to the public.