Acme Bus Corp. v. County of Suffolk

In a proceeding pursuant to CPLR article 78 to compel the production of certain documents pursuant to the Freedom of Information Law (Public Officers Law art 6) and for an award of attorney’s fees and other costs, the petitioner appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Suffolk County (Gazzillo, J.), entered August 12, 2014, as, upon a decision of the same court dated May 5, 2014, denied so much of the petition as sought an award of attorney’s fees and other costs and dismissed that portion of the proceeding.

Ordered that the judgment is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, so much of the petition as sought an award of attorney’s fees and other costs is reinstated and granted, and the matter is remitted to the Supreme Court, Suffolk County, for award of reasonable attorney’s fees and other costs and the entry of an appropriate amended judgment thereafter.

In March 2013, the petitioner submitted a proposal in

Under Public Officers Law § 89 (4) (c), “[t]he court . . . may assess, against such agency involved, reasonable attorney’s fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed, when: i. the agency had no reasonable basis for denying access; or ii. the agency failed to respond to a request or appeal within the statutory time.” Here, inasmuch as the petitioner eventually received the documents it sought, it “substantially prevailed” in the case (Public Officers Law § 89 [4] [c]; see Matter of Kohler-Hausmann v New York City Police Dept., 133 AD3d 437 [2015]; Matter of Bottom v Fischer, 129 AD3d 1604 , 1605 [2015]; Matter of Jaronczyk v Mangano, 121 AD3d 995 , 997 [2014]; Matter of New York State Defenders Assn. v New York State Police, 87 AD3d 193 , 196 [2011]; cf. Matter of Mack v Howard, 91 AD3d 1315 , 1317 [2012]). Moreover, the respondents had no “reasonable basis for denying access” to the records that the petitioner requested (Public Officers Law § 89 [4] [c] [i]). Inasmuch as all of the proposals had been submitted, and, indeed, acted upon, there was no basis for the respondents to deny disclosure under Public Officers Law § 87 (2) (c) (see Matter of Empire Golf Mgt., LLC v Olivieri, 18 AD3d 334 , 334-335 [2005]; Matter of Cross-

Further, the Supreme Court improvidently exercised its discretion in denying the petitioner’s request for attorney’s fees and other costs (see Matter of Jaronczyk v Mangano, 121 AD3d at 997 ; cf. Matter of Yang-Hao Lu v Kings County Dist. Attorney’s Off., 118 AD3d 815 , 816 [2014]). The 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 New York Civ. Liberties Union v City of Saratoga Springs, 87 AD3d 336 , 338 [2011], quoting Senate Introducer Mem in Support, Bill Jacket, L 2006, ch 492 at 5). Here, as we have already discussed, the respondents had no reasonable basis for denying the petitioner’s request for access to the records it sought. That circumstance in itself militates in favor of the award of reasonable attorney’s fees (see Matter of Jaronczyk v Mangano, 121 AD3d at 997 ). Although the respondents professed to be acting to protect the integrity of the competitive bidding process, they did not set forth any facts supporting their contention, but made only a conclusory assertion that delay in disclosure achieved that goal. Entities subject to the requirements of FOIL should not be permitted to evade them on a bare assertion that — contrary to the bedrock underpinnings of FOIL— withholding documents is in the public interest. In the context of the awarding of public contracts, even short delays in disclosure may have deleterious effects, because the timelines for challenges to the awarding of public contracts are so short (see Cannon Point N., Inc. v City of New York, 87 AD3d 861 ,

Rivera, J.P., Balkin, Roman and Sgroi, JJ., concur.