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NYDFS must now exhibit reasonableness if it denies FOI requests

Chris Hamblin, Editor, London, 14 January 2018

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New York State has passed an Act to amend the Public Officers Law in relation to freedom-of-information requests and attorney's fees. This now obliges the New York State Department of Financial Services to answer each FOI request or face having to pay the supplicant's costs if it loses a subsequent court case against him on the matter.

Paragraph (c) of subdivision 4 of section 89 of the public officers law, as amended by chapter 492 of the laws of 2006, has been amended to read as follows: "The court in such a proceeding: (i) may assess, against such agency involved, reasonable  attorney's  fees  and  other  litigation  costs reasonably  incurred  by such person in any case under the provisions of this section in which such person has substantially prevailed,  and when the agency failed to respond  to  a  request  or  appeal within  the  statutory  time; and (ii) shall assess, against such agency involved, reasonable attorney's fees and other litigation costs  reasonably  incurred  by  such person in any case under the provisions of this section in which such person has substantially prevailed and  the  court finds that the agency had no reasonable basis for denying access."

No such sanction awaits the British Financial Conduct Authority when it exercises its right to deny firms their information, and it does so very often. The British regulator does, however, publish all its FOI-related decisions in the same part of its website.

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