Wednesday, November 18, 2015

Kohler-Hausmann and MFIA Clinic Win Appeal

Professor Issa Kohler-Hausmann ’08, with amicus support from the Media Freedom and Information Access Clinic at Yale Law School, successfully appealed a New York State court ruling prohibiting a record requestor from suing an agency for unreasonable delay when filing a Freedom of Information Request in the state.

The appeal, which was argued by Professor Kohler-Hausmann before the New York State Appellate Division First Department in September 2015, specifically challenged the New York City Police Department’s response to a Freedom of Information Law request for aggregate data on criminal complaints and arrests.

The First Department ruled on November 10, 2015 that a record requestor who is forced to sue an agency because of unreasonable delay in issuing a substantive determination may be entitled to attorney fees even if the agency eventually turns over all responsive records in response to litigation. This ruling overturned a lower court’s holding that a record requestor cannot file suit in state court challenging an agency’s unreasonable delay until the agency actually issues a formal denial and that a request for attorney fees is moot if the agency discloses all responsive records after being sued.

The MFIA Clinic submitted an amicus brief in the case on behalf of the Associated Press, Daily News, New York Times, and Propublica highlighting the importance of the attorney fees provision in incentivizing transparent and prompt compliance with the state’s Freedom of Information Law.

“The attorney fees provision is one of the only tools the public has to incentivize recalcitrant agencies to comply with the substantive guarantees of the Freedom of Information Law,” says Kohler-Hausmann. “It is therefore essential that courts do not allow agencies to escape liability by refusing to respond to requests for an unreasonable amount of time and then turning over all records in response to litigation only after a requestor has put in all of the time and resources necessary to bring a lawsuit.”

The MFIA Clinic’s brief on behalf of several news organizations underscored the significance of the issue on appeal beyond the parties to the dispute, explained David Schulz, the Clinic’s co-director. “The New York City Police Department had engaged in unreasonable delay that violated both the letter and the spirit of the Freedom of Information Law, but the trial court allowed it to evade any sanctions,” Schulz explained. “If this ruling had been upheld, agencies could routinely ignore their obligation to respond to FOIL requests in a timely manner, a result that would  have significantly undermined New York’s system of open government.” 

Issa Kohler-Hausmann is an Associate Professor of Law at Yale Law School and Associate Professor of Sociology at Yale. She joined the Yale Law School faculty in 2014. Her primary research interests are in criminal law, criminal procedure, empirical legal studies, tort law, sociology of law, and legal theory. Before coming to Yale, she was a Law Research Fellow at Georgetown University. Admitted to the New York Bar in 2009, she previously worked in solo practice and has been an associate with Ilissa Brownstein & Associates. In her practice work, she practiced in felony and misdemeanor criminal defense, New York State freedom of information litigation, and parole matters.

The Media Freedom and Information Access Clinic is dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression through impact litigation, direct legal services, and policy work. The clinic is a program of the Abrams Institute for Freedom of Expression and Information Society Project. The clinic is co-taught by Jack Balkin, Knight Professor of Constitutional Law and the First Amendment; David Schulz, Floyd Abrams Clinical Lecturer at Yale Law School and Partner at Levine, Sullivan, Koch & Schulz LLP; and Jonathan Manes, Abrams Clinical Fellow and Clinical Lecturer in Law. YLS students Connor Clarke ’15, Vera Eidelman ’15, Nicholas Handler ’15 and Brianna Van Kan ’15 were the principal authors of the amicus brief.