Under New York’s Freedom of Information Law (FOIL), government agencies are required to provide public access to records, with the aim of promoting transparency and accountability. Public Officers Law §89(4)(c) further authorizes courts to award attorney’s fees and litigation costs to a petitioner who substantially prevails in a FOIL proceeding, provided the agency had no reasonable basis for denying access. A recent decision in Matter of Aron Law, P.L.L.C. v. FDNY, 2025 N.Y. Slip Op. 05806 (October 22, 2025), reinforces these principles and underscores that agencies cannot unreasonably delay or withhold responsive records.

The petitioner initially submitted a FOIL request to the New York City Fire Department (FDNY) in November 2019, seeking a FOIL “log.” More than three years later, the FDNY had failed to provide any responsive records or adhere to its own internal deadlines. In December 2022, the petitioner filed an administrative appeal, asserting that the request had been constructively denied. The FDNY FOIL Appeals Unit responded that it was “backlogged and short-staffed” and would respond within 30 days—but no records were produced within that timeframe.

Frustrated by the delay, the petitioner commenced an Article 78 proceeding in March 2023, seeking disclosure of the requested records and an award of attorney’s fees and litigation costs. In response, the FDNY argued for the first time that it was under no obligation to create documents that did not exist. Shortly thereafter, the FDNY finally provided the requested FOIL log. Nevertheless, the Supreme Court, Kings denied the petitioner’s request for attorney’s fees and litigation costs, reasoning that the FDNY had a reasonable basis for initially withholding the records.

On appeal, the Appellate Division reversed. The court emphasized that Public Officers Law §89(4)(c) is designed to deter unreasonable delays and denials of access, ensuring that agencies make a good faith effort to comply with FOIL requests. The court held that a petitioner “substantially prevails” when the Article 78 proceeding ultimately results in the production of requested records, whether by court order or voluntary disclosure. Here, the petitioner had successfully obtained the FOIL log after initiating the proceeding.

Moreover, the court found that the FDNY lacked a reasonable basis for withholding the records. The agency did not assert nonexistence of the documents until the motion to dismiss, and it provided no evidence to show that a FOIL log did not exist. The court rejected the FDNY’s “backlog and short-staffed” explanation as insufficient to justify the three-year delay. Accordingly, the Appellate Division held that the petitioner was entitled to an award of reasonable attorney’s fees and litigation costs and remitted the case to the Supreme Court to determine the appropriate amount.

This decision reaffirms that FOIL is not merely aspirational: agencies that fail to provide timely access to records, even if inadvertently or due to staffing issues, may be liable for litigation costs once a petitioner substantially prevails. For requesters, it serves as a reminder that persistence—and, if necessary, judicial intervention—can be effective in securing long-delayed public records.

Giulia R. Marino, Esq.