In this CPLR Article 78 proceeding, petitioners seek documents pursuant to the Freedom of Information Law (FOIL), in addition to attorneys fees and litigation costs for the present proceeding. Respondents oppose the relief requested and move to dismiss the petition.

Petitioners and certain of their neighbors have apparently been involved in real property disputes which are the subject of a civil proceeding. Petitioners have apparently contacted respondent New York State Police (State Police) on multiple occasions related to issues and problems related to the real property disputes.

In July and September of 2007, petitioners sent FOIL requests to the State Police, seeking copies of the incident reports and other documents related to calls which were responded to at petitioners' address. The State Police denied the requests based upon the ground that disclosure of the records would constitute an unwarranted invasion of personal privacy. Petitioners appealed the denials and both appeals were denied by respondent.

Petitioners then commenced the present proceeding, seeking disclosure of the requested incident reports and other documents. In response, respondents now move to dismiss the petition as moot on the basis that respondents attached the requested documents to their responding papers. Additionally, respondents request that petitioners' attorneys' fees request be denied because the agency had a reasonable basis in law for withholding the records. In reply, petitioners argue that respondents did not have a reasonable basis in law for withholding the documents and that attorneys' fees and litigation costs should be awarded.

The Court notes that petitioners have apparently received all of the documents they were seeking. Their reply papers request only that their attorneys' fees and litigation fees in the amount of $4,305.00 be awarded on the basis of respondents' refusal to provide the documents, even in redacted form, until after commencement of the present proceeding.

The Court has discretion to award reasonable attorneys' fees and litigation costs pursuant to Public Officer's Law 89(4)(c) when the person substantially prevailed and when "the agency had no reasonable basis for denying access." Even in cases where documents are ultimately required to be disclosed, the agency may be found to have had a reasonable basis for initially denying access (see, e.g., Norton v Town of Islip, 17 AD3d 468 [2d Dept 2005]; Hopkins v City of Buffalo, 107 AD2d 1028 [4th Dept 1985]; Niagara Environmental Action v City of Niagara Falls, 100 AD2d 742 [4th Dept 1984]; New York Times Co. v City of New York Fire Dept., 195 Misc 2d 119, 127-28 [2003] [holding that a reasonable legal basis for withholding portions of records precluded an award of attorneys fees]). If these statutory prerequisites are met, then the Court may consider an award of attorneys fees and litigation costs (see Beechwood Restorative Care Center v Signor, 5 NY3d 435 [2005]). Even if the statutory prerequisites are met, such an award is still within the discretion of the court (see Henry Schein, Inc. v Eristoff, 35 AD3d 1124 [3d Dept 2006]; Grace v Chenango Co., 256 AD2d 890 [3d Dept 1998]; Newsday, Inc. v State of New York Dept. of Transportation, 1 Misc 3d 321 [2003]). [*2]

There can be no dispute that petitioners have substantially prevailed because all the documents they requested have now been provided by respondents. Regarding the issue of whether the State Police had a reasonable basis for denying access, the Court finds that while respondents did not specifically detail a further explanation for its basis for denying access on the present motion, a reasonable basis was nevertheless set forth in letters to petitioners (see, e.g., Hopkins, supra; Niagara Environmental, supra). The State Police denied the records based upon the unwarranted invasion of personal privacy exception to FOIL. Police incident reports may be withheld on the basis of an unwarranted invasion of personal privacy under various circumstances. The parties interviewed in the police incident reports were neighbors of petitioners and people with whom petitioners were engaged in civil litigation with. The reports reflect the apparent hostility between the parties, including reporting one incident where one of the petitioners was holding a shotgun. Whether disclosure of records constitutes an unwarranted invasion of personal privacy is analyzed based upon a reasonable person standard (see Ruberti, Girvin & Ferlazzo P.C. v New York State Div. of State Police, 218 AD2d 494, 498 [3d Dept 1996]). Based upon all the facts and circumstances and the information contained in the reports, the State Police set forth a reasonable basis in law for initially denying portions of the reports with regard to a concern for the personal privacy of those interviewed. Based upon the circumstances set forth herein, and also noting the Court's discretion in awarding attorneys' fees even when the elements of Public Officer's Law 89(4) are met, the Court declines to award attorneys' fees or litigation costs to petitioners.

Accordingly, it is hereby

ORDERED and ADJUDGED that respondents' motion to dismiss is granted and the petition is dismissed.

This constitutes the Decision, Judgment and Order of the Court. All papers including this Decision, Judgment and Order are returned to the attorneys for the respondents. The signing of this Decision, Judgment and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:May, 2008

Troy, New York

______________________________________

Henry F. Zwack

Acting Supreme Court Justice