FOIL Fees Award for the Solo Practitioner-Petitioner

Freedom of Information Law was created to obtain open government to citizens, increase democracy and transparency as the ultimate objective. Rather than create more government to police the already existing government agencies (of which there are many), lawmakers determined that attorneys can act as private attorney generals to make sure that government complies with the Public Officers Law Sections 84-89, otherwise known as the Freedom of Information Law or FOIL. This Supreme Court, Third Department FOIL case confirms what has already occurred in both the Second and First Judicial Departments, that a self-represented FOIL attorney can obtain reasonable attorneys fees should s/he substantially prevail in a FOIL litigation.

The case in point is MATTER OF ARON LAW PLLC v. TOWN OF FALLSBURG, 2021 N.Y. Slip Op 6593 (App. Div. 2021), a matter litigated by Joseph Aron, a practitioner who excels in Freedom of Information Law litigation and successfully represented news outlets inclusive of the Jewish Press in FOIL litigations on numerous other occasions. Although Joseph Aron ("Joey") prevailed in obtaining records sought after litigation, the lower court fails to award him reasonable attorney's fees:

By order entered November 5, 2020, Supreme Court denied petitioner's request for counsel fees. The court noted that it had affirmed the denial of records under demand Nos. 1 and 9 and, although petitioner "technically prevailed" on demand Nos. 6-8, its success "was not substantial" because the certification obtained "involved a subset of records ... which was narrow in comparison to the overall scope of the FOIL request." As to demand Nos. 2-5, the court emphasized, among other things, that it never rendered a decision as to whether respondent's initial refusal to transfer the documents to a thumb drive was unreasonable. Rather, such documents had been disclosed in the format requested by petitioner due to a mutual agreement. Petitioner appeals from the November 2020 order.

Usually, the attorney seeking records under FOIL can later make an application for reasonable attorney's fees after the production of records, arguing that it substantially prevailed under the Public Officers Law. That occurred here but it seemed that the lower court did not wish to provide reasonable attorney's fees because of Joey's agreement, his being reasonable in attempting to work with the municipality, which was no doubt prompted by the Respondents.

The Third Department, awarding Joey these fees for representing his firm, disagreed with the lower court and stated that:

we reject respondent's contention that, by settling the proceeding as it related to demand Nos. 2-5 through a consent order that did not contain a provision preserving petitioner's claim for counsel fees, petitioner has waived such a claim or is equitably estopped from pursuing it. "A waiver is the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it. Such a waiver must be clear, unmistakable and without ambiguity" (Matter of Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d 1479, 1484 [2012] [internal quotation marks, ellipsis and citations omitted], affd21 NY3d 255 [2013]).

Id. (external quotation marks omitted and internal citations preserved). Petitioner's counsel will hopefully obtain reasonable attorney's fees for these violations of the Public Officers Law, FOIL violations and this case stands for the legal holding in the majority of Judicial Departments in New York State, a self-represented attorney as Petitioner for its law firm, can obtain reasonable attorney's fees under FOIL for acting as that private attorney general.

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 offer sliding scale FOIL representation, depending on the amount of the request and whether the request is in the public interest. Should you have questions about making a Freedom of Information Law Request, please visit our website and/or contact the Committee on Open Government to assist you in obtaining government transparency.