1st Dep't. FOIL Attorney Fee Award against NYPD

The New York Freedom of Information Law, or "FOIL," provides one meaningful deterrent to Public Officers, agencies, that violate the Public Officers Law, FOIL, the award of reasonable attorney's fees.

Attorneys who represent persons seeking information under the New York Public Officers law are entitled to reasonable attorney’s fees when forced to bring litigation to obtain records that should have and, here, could have been easily provided within a reasonable period of time the FOIL Request for records was made. Matter of Gedan v. Town of Mamaroneck, 2019 N.Y. Slip Op 1759 (2d Dep’t. 2019); Matter of Kohler-Hausmann v. New York City Police Dep’t., 133 A.D.3d 437, 18 N.Y.S.3d 848 (1st Dep’t. 2015). Reasonable Attorney’s Fees must be awarded to deter agencies refusal to comply with the Public Officers Law, Freedom of Information Law, FOIL (Public Officers Law Sections 84-89).

In Index No. 158010/19, Appeal No. 13379, Case No. 2020-02908., the Appellate Division of the Supreme Court of New York, First Department, decided on March 18, 2021 that New York City Police Department (NYPD) owed the Petitioners, a non-for-profit, reasonable attorney's fees under the Public Officers Law because it successfully pursued litigation to obtain records as defined by the New York Public Officer's Law, FOIL:

The lower court ordered the respondent New York City Police Department (NYPD), pursuant to the Freedom of Information Law (FOIL), to produce unredacted copies of video recorded by police officers on body-worn cameras during the fatal shooting of Susan Muller in Maspeth, Queens, on September 17, 2018, as well as any 911 calls made by Muller on September 16 and 17, 2018, unanimously modified, on the law, to grant the petition to the extent of directing respondents to produce all records sought by petitioner, except that video footage should be redacted by blurring images of Muller's body and blood spatter, and remanding the matter to Supreme Court for further proceedings, including in camera review as necessary, and otherwise affirmed, without costs.

The Supreme Court First Department determined that "Muller's family has a compelling interest in protecting Muller's dignity by limiting public access to images of her bloodied body (see Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, 485 [2005]; Matter of Edwards v New York State Police, 44 AD3d 1216, 1216-1217 [3d Dept 2007])." Although it need not be in the public interest, the Court determined that "Petitioner advances a significant countervailing public interest in disclosure of the video, to promote better outcomes in mental health crises." Similar to Matter of Dioso Faustino, 2021 NY Slip Op 00907 (1st Dep’t. February 11, 2021) (citing Kohler–Hausmann v. New York City Police Dep‘t, 133 A.D.3d 437, 437–38 (1st Dept. 2015)), the fact that these items were eventually produced is of no help to the Respondents who delay and cause additional litigation to occur simply to get these records.

Even if some of the material is subject to an exemption, and therefore the agency would be able to hide such material from disclosure, redaction is an appropriate remedy if the remainder of the material can be released. Indeed, Where it can do so without unreasonable difficulty, the agency must redact the record to take out the exempt information." Matter of Schenectady County Socy. for the Prevention of Cruelty to Animals v. Mills, 18 NY3d 42, 45 (2011). The Supreme Court First Department found that "These competing interests can best be balanced by redacting the video to blur out sensitive footage of Muller's body and the scene of her shooting death [and[ Respondents have not met their burden of showing that the video and audio footage should be redacted to remove Muller's home address and to blur the faces of bystanders at the scene.

Like Matter of Dioso Faustino, 2021 NY Slip Op 00907 (1st Dep’t. February 11, 2021), the police already reported on a great deal of the information it sought to assert privacy concerns to withhold. The importance of this decision, and Matter of Dioso Faustino is that the New York City Police Department (NYPD) not only withheld information from the public, thus harming the public, but was subject to pay reasonable attorney's fees thus further harming the public coffers for its delayed production of records in this case of great public interest.

The Case is Matter Of New York Lawyers For The Pub. Interest V. New York City Police Dept., 2021 N.Y. Slip Op 1557 (App. Div. 2021).

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)

Do you need legal services in obtaining information under the Public Officers Law, FOIL? Call 631-450-2515 or E-Mail info@CoryHMorris.com to arrange for a flat-fee price quote. We work on a sliding scale, depending on the amount of the request and whether the request is in the public interest.