Freedom of Information Law for Litigators

The Freedom of Information Law (FOIL) is becoming a pivotal tool in litigations involving local governmental agencies. For example, the New York Court of Appeals states that “the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government.” Recently, a mandatory award of attorney’s fees provision was added to the New York statute and exists in a great many other jurisdictions.  

The same personal injury attorney that hires a private investigator, knowing there is no ability to recoup the fees expended, should consider pursuing FOIL litigation when, upon a successful lawsuit, the records requestor may be entitled to an award of attorney’s fees. In other words, the investment in a FOIL litigation may actually be a source of income not just a source of certified records pivotal in litigation.

New York’s Freedom of Information Law

FOIL mandates that within five (5) business days of receiving a request for a record, an agency shall either (1) make the record available to the requestor; (2) deny the request in writing; or (3) furnish a written acknowledgment of the receipt of the request with a statement setting forth the approximate date when the request will be granted or denied. “The New York State Legislature enacted FOIL to promote an open government and public accountability.”  FOIL rests on the premise that the “public is vested with an inherent right to know and that official secrecy is anathematic to our form of government.”The statute “imposes a broad duty on government to make its records available to the public.”

Whether it be records relating to school video cameras, police body cameras, audits, wrongful convictions, traffic cameras or statements made to the police, any member of the public has standing to request such agency records and the attorney(s) who represents a spurned FOIL Petitioner in an article 78 proceeding is allowed to request reasonable attorney’s fees. FOIL generally mandates all agencies to make records available to the public, unless the material being sought falls within a statutory exemption.

As such, “[a]ll government records are presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law § 87(2).”  To ensure maximum access to government records, courts are to narrowly construe the exemptions, and the agency retains the burden to demonstrate the requested materials are actually exempt. Disclosure may be withheld “[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions.” This powerful tool operates at all levels of agencies as defined by Public Officers Law § 86(3).

Why Personal Injury Attorneys should FOIL

Ordinarily litigation may rely on agency records, from zoning to personal injury cases involving sidewalks. Did you know that you can ask for records to be certified under FOIL? Most local New York municipalities will simply comply with FOIL and provide you certified records that may make or break your case.

A New York Second Department case, Trawinski, shows how records produced from FOIL can change the outcome of a litigation. In Trawinski, the injured personal injury client sought to recover for falling on a sidewalk. Ownership of that sidewalk was an issue in the litigation.  After a complaint was filed and discovery conducted, a motion for summary judgment was filed by the Defendants. It was granted. On a motion to renew, filed after Trawinski’s receipt of new facts from a FOIL request, the lower court affirmed the award of summary judgment to the Defendants.  

The Second Deparment in Trawinski reversed because “she had not received these documents, which were responsive to her FOIL request and in the sole possession and control of the NYC defendants, until after the December 2014 order.” Indeed, in Trawinski, “The plaintiff contended that on or about December 8, 2014, she had filed a [FOIL] request for documents…pertaining to the subject sidewalk but had not yet received any documents.” The receipt was enough to preclude the award of summary judgment.

FOIL | Hiring FOIL Counsel

Attorneys who utilize contingency fee retainers would be wise to amend such retainers for the assignment of an award of reasonable attorney’s fees in regularly using FOIL.

FOIL templates can be easily accessed and should be utilized in every case involving a municipal entity: the police officer who takes a statement; the fire department who assists your injured client; the school cameras that caught the devastating injury suffered to a child. FOIL should become an arrow in the litigator’s quiver.

As the Law Offices of Cory H. Morris can explain, like hiring a private investigator, law firms can utilize FOIL Counsel if such attorneys are not comfortable with doing the work in house and, should the need for litigation arise, may be able to recoup fees.