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May 12, 1993

 

 

Mr. Eugene Forman
#91-A-8549
Clinton Correctional Facility
354 Hunter Street
Ossining, N.Y. 10562-5442

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the facts presented in your correspondence.

Dear Mr. Forman:

I have received your letter of April 29 in which you asked
whether you can request attorney's fees as part of the relief
sought in an Article 78 proceeding brought under the Freedom of
Information Law.

In this regard, a court may award attorney's fees, payable by
an agency, in certain circumstances. Specifically, §89(4)(c) of
the Freedom of Information Law states that:

"The court in such a proceeding 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,
provided, that such attorney's fees and
litigation costs may be recovered only where
the court finds that:

i. the record involved was, in fact, of
clearly significant interest to the general
public: and

ii. the agency lacked a reasonable basis in
law for withholding the record."

I point out that there is a decision in which the issue was
whether a person representing himself who was not an attorney was
eligible for an award of attorney's fees. In Leeds v. Burns
(Supreme Court, Queens County, NYLJ, July 27, 1992), the petitioner
was a law student who brought a proceeding against the Dean of the
City University of New York Law School at Queens College pro se
under the Freedom of Information Law. He prevailed and requested
attorney's fees. The court found that he met all of the conditions
prescribed in §89(4)(c), except one. In short, the court found
that he was an "aspiring attorney" but not yet a licensed attorney,
and that, therefore, attorney's fees would not be awarded. On the
basis of that decision, I believe that one must be or represented
by a licensed attorney in order to be eligible for an award of
attorney's fees under §89(4)(c).

Enclosed are copies of the advisory opinions that you
requested.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb