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Court sets high bar for attorney fees in FOI cases

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NEWS MEDIA UPDATE   ·   NEW YORK   ·   Freedom of Information   ·   Oct. 28, 2005

NEWS MEDIA UPDATE   ·   NEW YORK   ·   Freedom of Information   ·   Oct. 28, 2005

Court sets high bar for attorney fees in FOI cases

  • Narrowly interpreting the law, the state’s highest court ruled that public records must be of significant public interest for the state to pay attorney fees.

Oct. 28, 2005  ·   The unexpected 1999 shutdown of a Rochester, N.Y., nursing home — a facility that went from full and profitable to completely closed down in 60 days — sparked an open records lawsuit in which the requester won the records but is not entitled to attorney fees.

The New York Court of Appeals ruled Tuesday that Beechwood Restorative Care Center partner Brook Chambery will not get the state to pay the more than $100,000 in attorney fees accumulated in his quest for the records because the information was not “clearly of significant interest to the general public,” as required under the state’s Freedom of Information Law.

After Beechwood lost its license in 1999, Chambery made 17 separate requests for information related to the state Health Department’s findings under the Freedom of Information Law. When 12 of the requests had not been answered by 2001, Chambery sued, eventually winning access to hundreds of pages of records over the course of the next year.

Chambery had requested attorney fees in his lawsuit, granted under New York’s FOI Law if three criteria are met: the party must have “substantially prevailed” in the court action; the state must have “lacked a reasonable basis in law for withholding the records;” and the records must be of “clearly significant interest to the general public.” In this case, he argued that all three criteria were met, pointing out that the public had been greatly interested in the facility’s closure, according to Chambery’s attorney Kevin Cooman.

“At the time, we thought it was a pretty easy test because the fact that a nursing home had closed at that pace was already of public interest — it was all over the papers,” Cooman said. “If the event itself was of public interest, because of the FOI Law, the documents themselves are in the public interest.”

But writing for the unanimous state high court, Judge Victoria A. Graffeo upheld two lower courts’ decisions that Chambrey was not entitled to attorney fees. The “public’s interest in closure of the facility does not by itself establish that any records relating to DOH’s actions are also of interest to society,” Graffeo wrote.

Cooman takes the court’s narrow interpretation of the FOI Law to mean that each individual document requested on its own must independently be found of interest to the general public, as opposed to all of the requested documents taken as a whole. “Now it is probably an impossible test to meet. No private person or casual citizen with go through with a lawsuit,” he said.

The ruling has some calling for legislative change. Robert Freeman, Executive Director of New York’s Committee on Open Government called the ruling “a bad decision,” stating that while the state’s FOI Law itself is generally strong, the attorney fees provisions are weak, predicting that new legislation will be introduced to remedy that. “It’s simply too narrow,” he said. “Our committee is submitting a report and trying very hard to get that provision removed.”

Freeman said this ruling will “absolutely” chill the filing of lawsuits under the state’s FOI Law. “The law was interpreted as narrowly as it possibly could have been — it was a bad decision,” he said. “There are many, many, many instances where ordinary citizens request records that are only of interest to themselves and if they can’t get attorney fees, 999 out of 1,000 won’t bring a lawsuit — it’s too much time and too much money.”

(Beechwood v. Signor; Requester’s counsel: Kevin Cooman, McConville, Considine, Cooman & Morin, P.C., Rochester, N.Y.)CZ

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