PLANS FOR MANDATORY ATTORNEYS’ FEES AWARDS UNDER FOIL FAILS DUE TO GOVERNOR’S VETO

Purportedly to encourage “open government,” the New York State Legislature proposed a bill to amend § 89 of the Public Officers Law (the Freedom of Information Law, or “FOIL”) to provide for a monetary sanction against agencies when they wrongly denied access to records. This was not really new, as the statute already had a discretionary award of costs and attorneys’ fees in favor of a prevailing litigant when the agency had no reasonable basis for refusing a FOIL request. Thus, what was new was an attempt to make such an award mandatory when “the court finds that the agency denied access in material violation of [the Freedom of Information Law] and has no reasonable basis
for denying access.” As proposed by the Legislature, this law, of course, only applied to non-legislative branches of government, including municipalities.

And what exactly was meant by “material violation”? What is “material” on one day in one place may be immaterial the next day or one county to the West. What may be “personally identifying information” in one case may justify redaction, but in another case it may be held a “material violation” as the information may have appeared in a newspaper and was thus deemed already public. Further, at what point does a subjective right of privacy attach to FOIL? While case law is pretty clear that the
color of your car is not private, a home address probably is; but, of course, not in all cases. Fortunately for municipalities, they do not yet have to try to figure out this penal system yet. In a rare, and frankly surprising Veto Memorandum, the Governor provided good reasons for killing this Bill. Sadly, however, he also discloses that “comprehensive reforms” are coming anyway.

The Veto Memorandum from December, 2015, materially reads as follows: Read More

MUNICIPAL LAW UPDATE – FREE SPEECH AND SIGN LAWS

As some have heard by now, the United States Supreme Court in Reed v. Town of Gilbert, Arizona (135 S. Ct. 2218, June 18, 2015) issued what some are calling a landmark decision on municipal sign regulation under the First Amendment. On August 18, 2015, the New York Times picked up on this issue and parroted other commentaries asserting that this decision represents a major shift in First Amendment jurisprudence and invalidates, or potentially invalidates, many municipal sign laws and ordinances. Some even believe that this decision rolls back consumer protection laws to the 19th Century. Limiting our analysis to the effect of the Court’s decision on municipal sign laws, our view is that, while the sky is not falling, it would be wise to review your municipal sign laws to ensure compliance with the Court’s guidelines. This decision does not represent a significant change in law, nor any significant change in the constitutional law standards applicable to signs, although the lower courts tasked with interpreting and following the Supreme Court’s judgment may indeed feel compelled to look more closely at what constitutes a “content-based” regulation.

PROCEDURAL HISTORY

The Town of Gilbert, Arizona, had enacted a comprehensive sign law governing the manner in which outdoor signs may be displayed. The sign code prohibited all signs without a permit, but exempted 23 different classifications if they met varying display, timing, size, locational, and other rules. Included were 3 sign classifications that proved problematic: (1) ideological signs communicating a message or ideas for noncommercial purposes, which were allowed to be up to 20 ft2 and which could be placed in all zoning districts without time limits; (2) temporary political signs that were designed to influence the outcome of an election called by a public body, which can be up to 16 ft2 if located upon residential property and up to 32 ft2 if located upon nonresidential property; and (3) temporary directional signs relating to a “qualifying event,” being temporary signs intended to direct pedestrians, motorists, and other passersby to an assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization, which signs could be only 6 ft2, located only upon private property or a public right-of-way, and which signs were subject to a 4-sign per lot limit and a restriction prohibiting display more than 12 hours before the qualifying event and more than 1 hour afterward. Read More