STATE OF NEW YORK
        ________________________________________________________________________

                                          8186

                               2021-2022 Regular Sessions

                   IN ASSEMBLY

                                     August 25, 2021
                                       ___________

        Introduced by M. of A. LAWLER -- read once and referred to the Committee
          on Governmental Employees

        AN  ACT  to amend the public officers law, in relation to the failure to
          produce records in response to a FOIL request; and to amend the  penal
          law, in relation to criminalizing the failure to comply with the free-
          dom of information law

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Section 86 of the public officers law is amended by  adding
     2  two new subdivisions 10 and 11 to read as follows:
     3    10.  "State  agency" means any state department, division, commission,
     4  public authority or public corporation.
     5    11. "Head of agency"  means  the  commissioner,  acting  commissioner,
     6  deputy commissioner, superintendent, director, deputy director, or chief
     7  executive officer of a state agency.
     8    §  2. Paragraph (a) of subdivision 3 of section 89 of the public offi-
     9  cers law, as amended by chapter 223 of the laws of 2008, is  amended  to
    10  read as follows:
    11    (a)  (1) Each entity subject to the provisions of this article, within
    12  five business days of the receipt of a  written  request  for  a  record
    13  reasonably described, shall:
    14    (i) make such record available to the person requesting it[,];
    15    (ii) deny such request in writing; or
    16    (iii) furnish a written acknowledgement of the receipt of such request
    17  and a statement of the approximate date, which shall be reasonable under
    18  the  circumstances  of the request, when such request will be granted or
    19  denied, including, where appropriate, a statement  that  access  to  the
    20  record  will  be  determined in accordance with subdivision five of this
    21  section.
    22    (2) Any entity which furnishes  such  a  written  acknowledgement  and
    23  statement  shall  have up to thirty days from the date of the request to

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09735-02-1

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     1  grant or deny such request, and where  such  request  is  granted,  such
     2  entity  shall  have  up to a maximum of ninety days from the date of the
     3  request to make such record available to the person requesting it.  When
     4  a  state  agency  grants  a  request  for  records from a person and the
     5  records are not made available within thirty days of such  request,  the
     6  head  of such agency shall have a duty to review such request and direct
     7  such agency, in writing, to make the records available to the person who
     8  made the request no later  than  ninety  days  from  the  date  of  such
     9  request,  and  to  ensure  such records are made available. When a state
    10  agency receives a request for records and provides a  statement  of  the
    11  approximate  date  when such request will be granted or denied, the head
    12  of such agency shall have a duty to direct such agency, in  writing,  to
    13  make  such determination no later than thirty days from the date of such
    14  request, and to ensure such determination is made by such agency  within
    15  such  time.  When a state agency has not denied a request for records or
    16  made records available within thirty days of a request for records,  the
    17  head  of such agency shall sign a certification, under penalty of perju-
    18  ry, which shall be signed and posted  on  the  agency's  website  within
    19  forty-five days of the date of the request, and which shall include:
    20    (i) Whether the head of such agency reviewed the request for records;
    21    (ii)  Whether the head of such agency directed the agency, in writing,
    22  to make a determination to grant or deny such request within thirty days
    23  from the date of such request;
    24    (iii) Whether the request was granted or  denied  by  the  agency,  or
    25  whether  the agency failed to make a determination to grant or deny such
    26  request; and
    27    (iv) Whether the head of such agency directed, in  writing,  that  the
    28  records be made available to the person who requested them no later than
    29  ninety days after the date of such request. When a state agency receives
    30  a request for records, and a determination whether to grant or deny such
    31  request  has  not been made within thirty days of such request, the head
    32  of such agency shall have a duty to notify the governor that the  agency
    33  has  failed to make such determination, as required by this article, and
    34  to provide a copy of such request. Upon  receipt  of  such  notice,  the
    35  governor,  and  any  senior  staff member of the governor, shall have an
    36  affirmative duty to review such request and to direct such state agency,
    37  in writing, to make  a  determination  within  forty-five  days  of  the
    38  request  and  to  direct  such  state  agency,  in  writing, to make the
    39  requested records available within ninety days of the request,  if  such
    40  agency  grants such request. If such state agency fails to make a deter-
    41  mination to grant or deny  a  request  within  forty-five  days  of  the
    42  request,  or fails to make the requested records available within ninety
    43  days of the request, the governor, and any senior appointed staff member
    44  of the governor, shall each sign a separate certification, under penalty
    45  of perjury, which shall be signed and posted on the  governor's  website
    46  within  sixty  days after the record request and shall state whether the
    47  governor, or any senior appointed  staff  member,  directed  such  state
    48  agency,  in  writing,  to make a determination within forty-five days of
    49  the request and whether the governor,  or  any  senior  appointed  staff
    50  member,  directed such state agency to make the requested records avail-
    51  able within ninety days of the request,  if  such  agency  granted  such
    52  request.
    53    (3)  An  agency shall not deny a request on the basis that the request
    54  is voluminous or that locating or reviewing  the  requested  records  or
    55  providing  the  requested  copies is burdensome because the agency lacks
    56  sufficient staffing or on any other basis if the agency  may  engage  an

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     1  outside  professional  service  to provide copying, programming or other
     2  services required to provide the copy, the costs of which the agency may
     3  recover pursuant to paragraph (c) of subdivision one of section  eighty-
     4  seven  of  this article. An agency may require a person requesting lists
     5  of names and addresses to provide  a  written  certification  that  such
     6  person  will  not use such lists of names and addresses for solicitation
     7  or fund-raising purposes and will  not  sell,  give  or  otherwise  make
     8  available  such lists of names and addresses to any other person for the
     9  purpose of allowing that person to use such lists of names and addresses
    10  for solicitation or fund-raising purposes. If an  agency  determines  to
    11  grant  a  request  in  whole  or  in  part, and if circumstances prevent
    12  disclosure to the person requesting the record or records within  twenty
    13  business days from the date of the acknowledgement of the receipt of the
    14  request,  the  agency  shall  state, in writing, both the reason for the
    15  inability to grant the request within twenty business days  and  a  date
    16  certain within a reasonable period, depending on the circumstances, when
    17  the  request  will  be granted in whole or in part.  Upon payment of, or
    18  offer to pay, the fee prescribed therefor, the entity  shall  provide  a
    19  copy  of  such  record and certify to the correctness of such copy if so
    20  requested, or as the case may be, shall certify that it  does  not  have
    21  possession  of  such  record  or  that such record cannot be found after
    22  diligent search. Nothing in this article shall be construed  to  require
    23  any  entity  to  prepare  any record not possessed or maintained by such
    24  entity except the records specified  in  subdivision  three  of  section
    25  eighty-seven and subdivision three of section eighty-eight of this arti-
    26  cle.  When  an agency has the ability to retrieve or extract a record or
    27  data maintained in a computer storage system with reasonable effort,  it
    28  shall  be  required  to do so. When doing so requires less employee time
    29  than engaging in manual  retrieval  or  redactions  from  non-electronic
    30  records, the agency shall be required to retrieve or extract such record
    31  or  data  electronically. Any programming necessary to retrieve a record
    32  maintained in a computer storage system and to transfer that  record  to
    33  the  medium  requested by a person or to allow the transferred record to
    34  be read or printed shall not be deemed to be the preparation or creation
    35  of a new record.
    36    § 3. Title P of the penal law is amended by adding a new  article  285
    37  to read as follows:
    38                                 ARTICLE 285
    39                 OFFENSES AGAINST TRANSPARENCY IN GOVERNMENT
    40  Section 285.05 Criminal  failure  to comply with the freedom of informa-
    41                   tion law.
    42  § 285.05 Criminal failure to comply with the freedom of information law.
    43    A person is guilty of criminal failure to comply with the  freedom  of
    44  information law when:
    45    1.  such  person is the governor, any senior appointed staff member of
    46  the governor, or the head of a state agency;
    47    2. pursuant to section eighty-nine of the public  officers  law,  such
    48  person has:
    49    a. a duty to review a request for records;
    50    b.  a  duty to direct a state agency to make a determination, in writ-
    51  ing;
    52    c. a duty to direct a state agency, in writing, to make records avail-
    53  able in response to a request for records, or
    54    d. a duty to provide a signed certification; and
    55    3. such person, with intent, fails to review a  request  for  records,
    56  fails to direct a state agency to make a determination in writing, fails

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     1  to  direct a state agency to make records available in writing, or fails
     2  to provide a signed certification. Notwithstanding any law to  contrary,
     3  the  state  or  any state agency shall not indemnify or save harmless or
     4  pay  any  penalty  or legal fees of any person who is guilty of criminal
     5  failure to comply with the freedom of information law. All  those  found
     6  guilty of criminal failure to comply with the freedom of information law
     7  shall  not  use public funds, or monies from political action committees
     8  or campaign committees for the payment of fines or legal fees.
     9    Criminal failure to comply with the freedom of information  law  is  a
    10  class B misdemeanor.
    11    §  4.  This  act shall take effect on the ninetieth day after it shall
    12  have become a law.