Court Awards Attorney Fees For Failure To Comply With FOIL

Competitive Enterprise Institute v. The Attorney General, ____Misc. 3d___, 2017 NY  Slip Op 2713 (Albany Co. April 19, 2017), illustrates an important legal point; attorneys fees can be awarded for the failure to comply with the Freedom of Information Law (aka "FOIL"). As the court stated:

In determining an award of fees and costs in a FOIL proceeding, the Court is mindful "that the decision whether to award such fees is discretionary even when the statutory prerequisites have been established" (Matter of Carnevale v City of Albany, 68 AD3d 1290, 1293 [3d Dept 2009]), that an "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 South Shore Press, Inc. v Havemeyer, 136 AD3d 929, 931 [2d Dept 2016], quoting New York Civil Liberties Union v City of Saratoga Springs, 87 AD3d 336, 338 [3d Dept 2011], and that the award should be should be reasonable and take into consideration appropriate factors including "the time, effort and skill required; the difficulty of the questions presented; the responsibility involved; counsel's experience, ability and reputation; the fee customarily charged in the locality; and the contingency or certainty of compensation"(Shrauger v Shrauger, 146 AD2d 955, 956 [3d Dept 1989]).