New York High Court Restricts Attorney Fees Under FOIL
John Caher, New York Law Journal
10-27-2005

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The New York Court of Appeals on Tuesday strictly construed the attorney fee provision in the Freedom of Information Law, providing a substantial shield for government entities that wrongly deny citizens records to which they are entitled.

By a 7-0 vote, the judges said that a provision making attorney fees available only when information is improperly withheld on a matter of "significant interest to the general public" is a high hurdle to overcome. The judges also said the Equal Access to Justice Act is not applicable to FOIL proceedings.

Matter of Beechwood Restorative Care Center v. Signor, 136, is rooted in a 1999 state Health Department probe of a Rochester, N.Y.-area skilled nursing facility. The investigation, based on allegations that care at the Beechwood Restorative Care Center was substandard, forced the facility to shut down in July 1999. Its operating certificate was revoked a few months later.

Beechwood and one of its general partners, Brook Chambery, submitted 17 FOIL requests between August 1999 and February 2001, seeking hundreds of documents. The state initially turned over about 600 pages of documents, but largely ignored 12 of the FOIL demands. Beechwood had to initiate an Article 78 proceeding to obtain another 800 documents, many of which formed the basis for a federal civil rights action against Department of Health Employees. The petitioners then attempted to recoup, under FOIL and the Equal Access to Justice Act, over $50,000 in attorney fees.

The Appellate Division, 4th Department, held that attorney fees were not available because it was not established that they related directly to a matter of clearly significant interest to the public at large. On Tuesday, the Court of Appeals, in an opinion by Judge Victoria A. Graffeo, agreed.

Graffeo referred to the legislative history in concluding that in order to qualify for attorney fees, the records at issue must be of more than potential interest to the general public. She noted that then Governor Hugh L. Carey had vetoed a version of the legislation that contained a less strict public interest standard.

In Beechwood, Graffeo attempted to differentiate between the public's interest in the closure of the skilled nursing facility, and its interest in records related to the Health Department's actions that resulted in that closing.

"[T]he public's interest in closure of the facility does not by itself establish that any records relating to DOH's actions are also of interest to society," Graffeo wrote, adding in a footnote that the fact that the undisclosed documents were used in a lawsuit against the government neither precludes nor establishes public interest.

Significantly, the court found that the Department of Health improperly stonewalled until a court made it comply with the statute, the situation the attorney fee provision was drafted to address. Yet it still said attorney fees are not available in this case.

"DOH's failure to follow FOIL's requirements necessitated this lawsuit, a result that could have been avoided had DOH discharged its statutorily-mandated disclosure obligations in a more thorough and timely fashion," Graffeo wrote. "DOH's delay in conducting a comprehensive search for the requested records triggered the question whether Beechwood could recover attorneys' fees expended in this litigation."

The court did, however, agree with Beechwood, and disagree with the 4th Department, in holding that an award of attorney fees in such a case is a question of law. The Attorney General had maintained that it was a factual question, subject only to limited review by the Court of Appeals. The 4th Department agreed, but the Court of Appeals did not.

On another issue, the Equal Access to Justice Act question, the Court of Appeals agreed with the 4th Department in finding that the act provides no relief.

The Equal Access to Justice Act, enacted seven years after the attorney fee provision in FOIL, permits "the recovery of counsel fees and other reasonable expenses in certain actions against the state." Graffeo said the act provides relief only when another statute does not provide for attorney fees. Here, since FOIL contains a counsel fee provision, the Equal Access to Justice Act is inapplicable, the judges agreed.

Assistant Attorney General Frank K. Walsh defended the health department and Kevin S. Cooman of McConville, Considine, Cooman & Morin in Rochester argued for Beechwood. The New York Newspaper Publishers Association Inc., appearing amicus curiae, had urged the court to adopt a "catalyst test" that would result in a virtually automatic award of counsel fees when records of clear public interest are disclosed only because the petitioner brought a lawsuit.

"As a result of this decision, attorney fees will be awarded to successful FOIL applicants who are forced to commence litigation to obtain disclosure of non-exempt agency documents only in the most exceptional cases where a reviewing court determines that the documents themselves clearly demonstrate a matter of significant public interest," said Michael J. Grygiel of McNamee, Lochner, Titus & Williams in Albany, counsel for the amici.

Grygiel acknowledged that as a result of the decision, a petitioner will not know until after obtaining and examining wrongfully withheld materials if those documents are of such significant public interest as to warrant a legal fight to obtain them.

There was no immediate reaction from the Health Department.

The Equal Access to Justice Act