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
A. 8186 2
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.