MATTER OF CANANDAIGUA MESSENGER v. WHARMBY

It is hereby ORDERED that the order and judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the award of attorney's fees to petitioner and as modified the order and judgment is affirmed without costs.

Memorandum:

We agree with Supreme Court that respondent Canandaigua Recreation Development Corporation (CRDC) is an "agency" as defined in Public Officers Law § 86 (3) and therefore subject to the Freedom of Information Law (FOIL) (Public Officers Law art 6). We further agree with the court that CRDC is a "public body" as defined in Public Officers Law § 102(2) and therefore subject to the Open Meetings Law (Public Officers Law art 7). We conclude, however, that the court erred in awarding attorney's fees to petitioner and thus we modify the order and judgment by vacating that award. CRDC had a "reasonable basis in the law for withholding the requested [documents]", and thus the court was without authority to award attorney's fees pursuant to FOIL ( Matter of Niagara Envtl. Action v. City of Niagara Falls, 100 A.D.2d 742, affd 63 N.Y.2d 651; see, Public Officers Law § 89 [c] [ii]; Matter of Hopkins v. City of Buffalo, 107 A.D.2d 1028, 1029). Further, in view of the reasonable belief of CRDC that it is not a public body, the court abused its discretion in awarding attorney's fees pursuant to Public Officers Law § 107 (2) ( cf., Matter of Gordon v. Village of Monticello, 87 N.Y.2d 124, 127-128; Matter of Goetschius v. Board of Educ., 244 A.D.2d 552, 553-554).