Mineo v. New York State Police

Summary

The New York Supreme Court, Appellate Division, Third Department reviewed cross appeals in a CPLR article 78 proceeding involving a Freedom of Information Law request for an incident report. The court upheld the denial of counsel fees but reversed the order requiring the New York State Police to refund $14.50 of the $15 statutory fee, holding that Public Officers Law § 66-a(2) authorized the fee.

Holdings

1. Even where a FOIL petitioner substantially prevails and one of the statutory criteria for an award is satisfied, the award of counsel fees remains discretionary. Under the circumstances, Supreme Court did not abuse its discretion by denying petitioner counsel fees.
2. Public Officers Law § 66-a (2) specifically authorized the New York State Police to charge a $15 search fee for the investigative incident report, without an additional photocopying charge. Supreme Court therefore erred in ordering a refund of $14.50.

Questions Presented

1. Whether Supreme Court abused its discretion by denying petitioner counsel fees and litigation expenses under Public Officers Law § 89 (4) (c).
2. Whether Public Officers Law § 66-a (2) authorized the New York State Police to charge a $15 fee for the investigative incident report notwithstanding the general photocopying-fee provision in Public Officers Law § 87 (1) (b) (iii).

Disposition

affirmed