FOIL: Avoiding Accountability with "Reasonable Basis"

In MATTER OF GANNETT SATELLITE INFO. NETWORK, LLC v. New York State Thruway Auth., 2020 N.Y. Slip Op 1680 (App. Div. 2020), the Third Department is met with a request for records of "any emails, letters or any other written or digital communication regarding the shifting of Rockland-bound traffic from the old Tappan Zee Bridge to the Gov. Mario M. Cuomo Bridge overnight August 25 and 26, 2017 to or from [12 current or former directors, officers or employees of respondent] from Jan. 1, 2017 until Aug. 25, 2017." The case is important because it basically allows a municipality off the hook (see the escape sign) because it can feign and the court can agree that there was a reasonable basis to withhold thousands of pages of records and, therefore, a petitioner is left with the records and without compensation for bringing litigation in the public interest.

With the repeal of Civil Rights Law Section 50-a, police misconduct records, it is likely that an enormous amount of litigation will ensue based on a municipality's "reasonable basis" to withhold records from the public that will require litigation. In this case it was the continued delay - when do the records no longer become relevant? Will the New York Courts do the justice that the Legislator required in enacted in Public Officers Law Section 89 and mandating an award of attorney's fees in certain instances such as the agency taking a "so-sue-me" approach or will it allow, as the case is here, Courts to approve the continued delay of a municipality until a lawsuit is filed.

The New York Freedom of Information Law (FOIL) allows the public access to government records. To hold the government accountability and for an informed citizenry, this right to access records through FOIL is vital to know what the government does on behalf of its people. If a governmental agency responds (with records and not delay) to a request, no litigation is required. Sometimes the administrative appeal to a FOIL request, when records are not provided, may suffice to obtain records from a governmental agency.

Without compliance, the public must resort to litigation. To walk into court it costs approximately, $400-$500 (depending on the costs of service), along with the legal fees for the privilege of this public access should the government (shocking) wish to withhold records that may shine a light onto misconduct, bad deeds, embarrassing or potentially criminal conduct of the Public Officers for which FOIL is contained under (Public Officers Law Sections 84-89):

Respondent's FOIL appeals officer concluded that respondent required additional time to locate and review the requested records, that respondent had advised petitioner in writing of its need for additional time and that respondent's response time was reasonable under the circumstances....Petitioner sought an order directing respondent to comply with its FOIL request and an award of counsel fees.[2] While this proceeding was pending, respondent provided petitioner with 1,107 pages of records on July 6, 2018, and indicated that any withheld documents were exempt from disclosure pursuant to Public Officers Law § 87(2)(a), (f) and (g). Thereafter an additional 213 pages were provided to petitioner on August 10, 2018, for a total of 1,320 pages.[3] Respondent moved to dismiss the petition as moot, arguing that, during the proceeding, it had provided all nonexempt and nonprivileged records in response to the subject FOIL request.

In evaluating whether to protect people or municipal pocketbooks, the Courts are informed that the following is the standard for review as to whether an agency had a "reasonable" basis to withhold records that is becoming reminiscent of other areas of Civil Rights Law such as whether law was "clearly established," such as the use of an LRAD or tasering a handcuffed suspect, in determining whether a governmental entity (or agent) may avoid civil liability. In this case, we see the perpetual delay - demanding continued time extensions that is neither allowed by the Public Officers Law nor, likely, required to produce the records at issue here - met with the approval of the Supreme Court and the Third Department.

Knowing the amount of legal work and the course of conduct whereby records were only obtained after a litigation was commenced, the Third Department recites the following legal standard governing these proceedings:

"The Public Officers Law authorizes an award of [counsel] fees where the petitioner `has substantially prevailed' in the FOIL proceeding and the agency either lacked a reasonable basis for denying access to the requested records or `failed to respond to a request or appeal within the statutory time'" (Matter ofMadeiros v New York State Educ. Dept.,30 NY3d 67, 78-79 [2017],quoting Public Officers Law § 89[4][c][i], [ii];see Matter of101CO, LLC v New York State Dept. of Envtl. Conservation,169 AD3d 1307, 1311 [2019],lv dismissed34 NY3d 1010 [2019];Matter ofCompetitive Enter. Inst. v Attorney Gen. of N.Y.,161 AD3d 1283, 1284-1285 [2018];Matter ofLegal Aid Socy. v New York State Dept. of Corr. & Community Supervision,105 AD3d 1120, 1121 [2013]). "A petitioner substantially prevails under Public Officers Law § 89(4)(c) when it receives all the information that it requested and to which it was entitled in response to the underlying FOIL litigation" (Matter of101CO, LLC v New York State Dept. of Envtl. Conservation,169 AD3d at 1311[internal quotation marks, brackets and citations omitted]), even where, as here, the response is received after the proceeding is commenced (see Matter of Competitive Enter. Inst. v Attorney Gen. of N.Y.,161 AD3d at 1286).

A reasonable basis to withhold records from the press and the public appears to mean that the government agency suffers no recourse for its bad acts. I learned this when the Second Department stated that the Traffic and Parking Violations Agency had a good faith basis to not respond to request for agency records because it thought it was a court and not an agency, see Matter of Law Offices of Cory H. Morris v. Nassau County (2d Dep't. 2020), in regards to a public memorandum issued about School Speed Zones in Nassau County.

Like the Second Department, the Third Department holds that "petitioner has failed to establish that respondent 'either lacked a reasonable basis for denying access to the requested records or `failed to respond to [its] request or appeal within the statutory time'" " (Matter of Madeiros v New York State Educ. Dept.,30 NY3d at 78-79,quoting Public Officers Law § 89[4][c][i], [ii]).

What about the perpetual delay? The Court finds that

Further, as the court correctly determined, although respondent thereafter adjusted its anticipated response date several times over the next nine months, it did so each time in writing before the expiration of the previously set anticipated response date, during which it continued to search for and review possible responsive records.

The case is MATTER OF GANNETT SATELLITE INFO. NETWORK, LLC v. New York State Thruway Auth. and it allowed the perpetual delay of an agency without financial recourse to the Petitioner and the Public.

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