Getting attorney fees awarded for a successful Freedom of Information or Open Meetings lawsuit is not easy. Our bill addresses that A5357A/S 5801A (Assembly Members Steck & Senator Liu). This bill passed the Senate in June 2023!
New York’s current attorney fee statute is weaker than many other states, making it more challenging to obtain attorney fees when litigation is successful. In states like California, Colorado, Delaware, Florida, Illinois, Louisiana, Michigan, Montana, New Jersey, Rhode Island, and Washington, attorney fees are awarded if a party “prevails” in a lawsuit. In contrast, New York’s statute requires that a party “substantially prevail” before attorney fees are awarded, which is a higher standard.
After a plaintiff is successful in an Article 78 action, a legal debate often ensues as to whether the plaintiff “substantially prevailed” in order to receive attorney fees. This type of action typically involves challenges to decisions made by state or local agencies. New York’s statute presents an additional hurdle in that the court must also find there was no reasonable basis for the agency to deny the Freedom of Information Law (FOIL) request. This additional finding is not required in the states listed above.
Under the Open Meetings Law, attorney fees will not be awarded if an agency believes there was a reasonable basis for holding an improper executive session. However, if a court determines that an executive session was improperly held, it seems just that a successful plaintiff should be reimbursed for their attorney fees, regardless of whether the agency believed there was a reasonable basis for its actions.
NY does not have the right to open government, as stated in its Constitution, and it should. A4429/S1063 (Assemblymember Steck & Senator May).
Four states have the right to open government stated in their Constitution (California, Florida, Louisiana, Montana). The legislature has done recent Constitutional Amendments regarding the environment and equal rights, the same should be done for the right to open government.
Assemblymember Phil Steck and Senator Rachel May have introduced A4429/S01063. The legislation simply states:
“The right to public information, being a necessary and vital part of democracy and public deliberation, shall be a fundamental right of the people. The right of the people to inspect and/or copy records of government, and to be provided notice of and attend public meetings of government, shall not be unreasonably restricted.”
Around the country, state legislatures are seeking to weaken the public’s right to information and we should take steps to prevent that from ever happening in New York.
Currently, if your Freedom of Information Law request or Open Meetings Law issue is ignored or denied, your only recourse is to sue. We have drafted a bill that would provide independent hearing officers to hear such cases. A7933 (Assemblymember Rosenthal).
No entity has the power to enforce New York’s Open Meetings Law. Unlike other states, New York does not have an independent body with enforcement powers to address violations of the Open Meetings Law and Freedom of Information Law. Other states also impose fines or criminal charges for violations of open government laws, such penalties are not available in New York. The only recourse available to the public in NY is retaining an attorney to file an Article 78 proceeding and hope that the court will award attorney fees.
In the 1980s, homeowners across New York State were angry about increasing property taxes. The only
recourse homeowners had to challenge their property assessments was to hire an attorney to file a lawsuit in the Supreme Court, which was not easy or affordable. To assist homeowners, the New York State legislature in 1982 passed legislation creating a hearing officer system to hear property tax assessment cases through Small Claims Assessment Reviews (SCAR).
Through this system, homeowners complete a simple application, pay a filing fee, and the New York State Office of Court Administration appoints a hearing officer to decide the complaint. Hearing officers are attorneys, realtors, and others with experience in dealing with real property valuations.
In 2020, 102,000 assessment complaints were handled across the state through this system. Applicants pay a $30 filing fee, and the Court Administration pays hearing officers $75 per case.
The same system can and should be replicated to handle Freedom of Information Law and Open Meetings Law appeals. Assemblymember Rosenthal has introduced a bill (A07933) to create a hearing officer system. We are seeking a Senate sponsor.
Many people are shocked to learn that in New York State they do not have a right to speak at their town board, city council or county legislature meetings. The right to be heard, which is a fundamental democratic right should be required by law.
Many people are shocked to learn that they do not have a right to speak at their town board, city council or county legislature meetings. The NY Open Meetings Law does not mandate that there must be a public comment period. While most local governments provide an opportunity for the public to speak, not all do. The right to be heard, which is a fundamental democratic right should be required by law.
13 states that mandate hearing from the public at meetings (Alaska, Arkansas, California, Hawaii, Louisiana, Montana, Nebraska, Nevada, New Jersey, North Carolina, Pennsylvania, Tennessee, Vermont).
In a recent Coalition report we documented that 177 towns in NY State do not allow for public comments at their meetings. Assemblymember Woerner has expressed interest in sponsoring this legislation and is working on a draft.
