STATE OF YORK
EXECUTIVE CHAMBER
ALBANY I2224

 

APPROVAL #33 December 13, 2017
CHAPTER #451

MEMORANDUM ?led with Assembly Bill 2750-A, entitled:

ACT to amend the public of?cers law, in relation to freedom of
information requests and attorney?s fees?



The purpose of the State?s Freedom of Information Law (FOIL) is, and has always.
been, to promote openness and transparency in New York Government. Any reform to the
State?s FOIL laws should therefore apply uniformly and equitably to both the Executive and

Legislative branches. I have repeatedly advanced comprehensive FOIL reform that achieves this
goal, to no avail.

The bill before me continues to perpetuate a fractured and inequitable system of
transparency by only applying to the Executive, and intentionally excluding other branches of
government. Speci?cally, this bill would remove judicial discretion and mandate the award of
attorney?s fees against the State. Notably, current law already provides courts with discretion to
award attorney?s fees in such situations, but they are not required to do so.

I vetoed a similar bill in 2015 for several reasons. Most notably, it would have required
a court to assess attorney?s fees against an agency when an agency denies access to FOIL
requests in ?material violation? of FOIL. However, the bill failed to de?ne what a ?material
violation? is, thus allowing each court to de?ne the scope of the term and leaving litigants
without any clarity. The bill would also have eliminated the court?s discretion to determine
whether to award fees, even though the court is best suited to determine the facts and
circumstances of each case.

This year?s bill remedies these technical concerns by requiring the FOIL requestor to
substantially prevail in the litigation as well as demonstrating the agency had no reasonable basis
for withholding the records. Thus while I continue to harbor concerns about diminishing the
court?s discretion in these cases, it is outweighed by the greater principle of increasing
transparency.

Yet signing this bill does not address the need for comprehensive FOIL reform. The
statute dates back to the 19705 and needs to be updated. Accordingly, I will once again advance
comprehensive FOIL reform in the next legislative session that applies equally to both branches

of government, because transparency should be embraced by all. I call on all stakeholders to join
me in this effort.

This bill is approved.