Bill S7570-2013

Authorizes attorney's fees to an agency where a person or entity fails to prove that an agency should properly withhold records

Authorizes attorney's fees to an agency where a person or entity fails to prove that an agency should properly withhold records from the public.

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  • May 15, 2014: REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS

Memo

BILL NUMBER:S7570

TITLE OF BILL: An act to amend the public officers law, in relation to attorney's fees where a person or entity fails to prove that an agency should properly withhold records

PURPOSE: To require the payment of attorney's fees to the agency by the non-prevailing party in a proceeding to stop disclosure of a record.

SUMMARY OF PROVISIONS:

Section one amends subdivision five of section eighty-nine of the public officers law by adding a new paragraph(i). Paragraph (i) provides that in any proceeding commenced to review an adverse determination pursuant to paragraph (c) of section eighty-nine in which the person or entity initiating the proceeding fails to prevail by proving that the records at issue may properly be withheld from the public, the court may direct such person or entity to pay reasonable attorney's fees and litigation costs to the agency.

Section two provides that that this act shall take effect on the sixtieth day after it shall have become a law.

JUSTIFICATION: Subdivision five of section eighty-nine of the FOIL relates to disclosures that would cause substantial injury to the competitive position of a commercial enterprise. This is the only grounds upon which a person or entity may initiate a judicial proceeding to prevent the government from disclosing records to the public. The government will then be required to expend time and money to defend its position that the record should be disclosed, a cost which is passed along to taxpayers.

Unlike proceedings initiated by individuals who have been denied access to requested records, this is a situation in which a person or entity is seeking to block records from being released when the agency believes the records must be disclosed. It is only fair that those who initiate such a proceeding and do not prevail are required to pay the attorney's fees and litigation costs.

LEGISLATIVE HISTORY: A.6996, of 2011 and 2012, referred to governmental operations. Same as S.4754 (Saland), of 2011 and 2012, referred to investigations and government operations.

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect on the sixtieth day after it shall have become law.


Text

STATE OF NEW YORK ________________________________________________________________________ 7570 IN SENATE May 15, 2014 ___________
Introduced by Sen. LANZA -- read twice and ordered printed, and when printed to be committed to the Committee on Investigations and Govern- ment Operations AN ACT to amend the public officers law, in relation to attorney's fees where a person or entity fails to prove that an agency should properly withhold records THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 5 of section 89 of the public officers law is amended by adding a new paragraph (i) to read as follows: (I) IN ANY PROCEEDING COMMENCED TO REVIEW AN ADVERSE DETERMINATION PURSUANT TO PARAGRAPH (C) OF THIS SUBDIVISION IN WHICH THE PERSON OR ENTITY INITIATING SUCH PROCEEDING FAILS TO SUBSTANTIALLY PREVAIL BY PROVING THAT THE RECORDS AT ISSUE MAY PROPERLY BE WITHHELD FROM THE PUBLIC, THE COURT IN SUCH PROCEEDING MAY DIRECT SUCH PERSON OR ENTITY TO REMIT TO THE AGENCY INVOLVED REASONABLE ATTORNEY'S FEES AND OTHER LITI- GATION COSTS REASONABLY INCURRED BY THE AGENCY. S 2. This act shall take effect on the sixtieth day after it shall have become a law.

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