Department of Corrections must pay FOIL FEEs

Freedom of Information Law Requests of Prisons, DOC or otherwise, require that the request seek 'records' and be reasonably described. In this case, brought by counsel, the request was unreasonable denied (what is coined a "constructive denial" by the FOIL Courts) and the Court Orders not only production of certain records but reasonable attorney's fees.

It is important to note that the FOIL, the Freedom of Information Law, works by operation of requesting records (broadly defined under Public Officers Law Sections 84-89) from an agency, a government entity also defined within the same section of law.

Here, the lawyer made a valid FOIL Request of DOC but some of the categories of DOC FOIL requests sought information and not records as defined by the law. The Court recites that:

In its initial request, the petitioner sought documents setting forth the DOC's citywide rules, procedures, and policies, as they were in effect on October 10, 2017, that articulated the responsibility of all DOC officers to protect inmates from assaults by other inmates in DOC custody and the duties of DOC employees to supervise and monitor DOC housing units to prevent violence by inmates against other inmates, as well as policies for conducting both investigations of inmate-on-inmate assaults and investigations of slip-and-fall accidents experienced by inmates in DOC custody. The petitioner also sought records setting forth DOC policies with respect to the creation and maintenance of such records, including photographs, to the extent applicable to inmate-on-inmate assaults and slip-and-fall accidents of inmates in DOC custody.

Important for this case is that the requests for information were denied yet the attorney still prevailed in that he was successful in receiving records and thus was entitled to FOIL Attorney's Fees as the law requires for a Petitioner who substantially prevails.

Specifically, aside from the accountability under FOIL assessed by the Court, "FOIL does not obligate the DOC to respond to what are, in effect, interrogatories seeking the identities of officers and employees on duty on a particular date in a particular location. Inasmuch as requests 4 and 5 constitute a mere request for information, unrelated to any particular agency record, those branches of the petition seeking judicial review of the RAAO's constructive denial of requests 4 and 5 must be denied."

So, for FOIL Requests, asking for records that evidence the identities of offices and employees may result in production but asking simply for the identity of persons on a specific day does not because FOIL does not "require any entity to prepare any record not possessed or maintained by such entity" (Public Officers Law § 89[3][a]; see Matter of Locator Servs. Group, Ltd. v Suffolk County Comptroller, 40 AD3d 760, 761 [2d Dept 2007]).

The Case is MATTER OF LAW OFF. OF CYRUS JOUBIN, ESQ. v. NEW YORK CITY DEPT. OF CORR., 2024 N.Y. Slip Op 32165 (Sup. Ct. 2024), great work CYRUS JOUBIN, ESQ!

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954)-745-4592 (FLA)

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