Bill Text: NY A09975 | 2023-2024 | General Assembly | Introduced
Bill Title: Requires entities that submit records to state agencies that are excepted from disclosure under FOIL to periodically re-apply for the exception.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-05-01 - referred to governmental operations [A09975 Detail]
Download: New_York-2023-A09975-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 9975 IN ASSEMBLY May 1, 2024 ___________ Introduced by M. of A. L. ROSENTHAL -- read once and referred to the Committee on Governmental Operations AN ACT to amend the public officers law, in relation to requiring enti- ties that submit records to state agencies that are excepted from disclosure under the freedom of information law to periodically re-ap- ply for the exception The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 5 of section 89 of the public officers law, as 2 added by chapter 890 of the laws of 1981, paragraph (a) as amended by 3 chapter 403 of the laws of 2003 and paragraph (d) as amended by chapter 4 707 of the laws of 2019, is amended to read as follows: 5 5. (a) (1) A person acting pursuant to law or regulation who, subse- 6 quent to the effective date of this subdivision, submits any information 7 to any state agency may, at the time of submission, request that the 8 agency except such information from disclosure under paragraph (d) of 9 subdivision two of section eighty-seven of this article. Where the 10 request itself contains information which if disclosed would defeat the 11 purpose for which the exception is sought, such information shall also 12 be excepted from disclosure. 13 (1-a) A person or entity who submits or otherwise makes available any 14 records to any agency, may, at any time, identify those records or 15 portions thereof that may contain critical infrastructure information, 16 and request that the agency that maintains such records except such 17 information from disclosure under subdivision two of section eighty-sev- 18 en of this article. Where the request itself contains information which 19 if disclosed would defeat the purpose for which the exception is sought, 20 such information shall also be excepted from disclosure. 21 (2) (i) The request for an exception shall be in writing, shall 22 specifically identify which portions of the record are the subject of 23 the request for exception and state the reasons why the information 24 should be excepted, for a defined period of time, from disclosure. The 25 submitter may also provide a date by which such exception shall expire, EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07823-01-3A. 9975 2 1 provided that such date shall not exceed three years from the time of 2 the agency's receipt of the request for an exception. 3 (ii) Not less than sixty days prior to the expiration of the then 4 current term of the exception request, the submitter may apply to the 5 agency for a three-year extension of its exception request. Upon timely 6 receipt of a request for an extension of an exception request, an agency 7 shall review the application and either grant or deny the extension 8 request. A denial of an extension request may be appealed by the submit- 9 ter pursuant to paragraph (c) of this subdivision. If the submitter 10 fails to apply for an extension, the exception shall be considered to 11 have expired. 12 (3) Information submitted subsequent to the effective date of the 13 chapter of the laws of two thousand twenty-three that amended this 14 subdivision and as provided in subparagraphs one and one-a of this para- 15 graph shall be excepted from disclosure for a defined period of time and 16 be maintained apart by the agency from all other records until the expi- 17 ration of the submitter's exception request or fifteen days after the 18 entitlement to such exception has been finally determined or such 19 further time as ordered by a court of competent jurisdiction. 20 (b) [On] During the effective period of an exception request under 21 this subdivision, on the initiative of the agency at any time, or upon 22 the request of any person for a record excepted from disclosure pursuant 23 to this subdivision, the agency shall: 24 (1) inform the person who requested the exception of the agency's 25 intention to determine whether such exception should be granted or 26 continued; 27 (2) permit the person who requested the exception, within ten business 28 days of receipt of notification from the agency, to submit a written 29 statement of the necessity for the granting or continuation of such 30 exception; 31 (3) within seven business days of receipt of such written statement, 32 or within seven business days of the expiration of the period prescribed 33 for submission of such statement, issue a written determination grant- 34 ing, continuing or terminating such exception and stating the reasons 35 therefor; copies of such determination shall be served upon the person, 36 if any, requesting the record, the person who requested the exception, 37 and the committee on [public access to records] open government. 38 (c) A denial of an exception from disclosure under paragraph (b) of 39 this subdivision may be appealed by the person submitting the informa- 40 tion and a denial of access to the record may be appealed by the person 41 requesting the record in accordance with this subdivision: 42 (1) Within seven business days of receipt of written notice denying 43 the request, the person may file a written appeal from the determination 44 of the agency with the head of the agency, the chief executive officer 45 or governing body or their designated representatives. 46 (2) The appeal shall be determined within ten business days of the 47 receipt of the appeal. Written notice of the determination shall be 48 served upon the person, if any, requesting the record, the person who 49 requested the exception and the committee on [public access to records] 50 open government. The notice shall contain a statement of the reasons 51 for the determination. 52 (d) (i) A proceeding to review an adverse determination pursuant to 53 paragraph (c) of this subdivision may be commenced pursuant to article 54 seventy-eight of the civil practice law and rules. Such proceeding, when 55 brought by a person seeking an exception from disclosure pursuant to 56 this subdivision, must be commenced within fifteen days of the serviceA. 9975 3 1 of the written notice containing the adverse determination provided for 2 in subparagraph two of paragraph (c) of this subdivision. The proceeding 3 shall be given preference and shall be brought on for argument on such 4 terms and conditions as the presiding justice may direct, not to exceed 5 forty-five days. 6 (ii) Appeal to the appellate division of the supreme court must be 7 made in accordance with subdivision (a) of section fifty-five hundred 8 thirteen of the civil practice law and rules. 9 (iii) An appeal taken from an order of the court requiring disclosure: 10 (A) shall be given preference; and 11 (B) shall be brought on for argument on such terms and conditions as 12 the presiding justice may direct, upon application by any party to the 13 proceeding; and 14 (C) shall be deemed abandoned when the party requesting an exclusion 15 from disclosure fails to serve and file a record and brief within sixty 16 days after the date of the notice of appeal, unless consent of further 17 extension is given by all parties, or unless further extension is grant- 18 ed by the court upon such terms as may be just and upon good cause 19 shown. 20 (e) The person requesting an exception from disclosure pursuant to 21 this subdivision shall in all proceedings have the burden of proving 22 entitlement to the exception. 23 (f) Where the agency denies access to a record pursuant to paragraph 24 [(d) of] (b) of this subdivision in conjunction with subdivision two of 25 section eighty-seven of this article, the agency shall have the burden 26 of proving that the record falls within the provisions of such excep- 27 tion. 28 (g) Nothing in this subdivision shall be construed to deny any person 29 access, pursuant to the remaining provisions of this article, to any 30 record or part excepted from disclosure upon the express written consent 31 of the person who had requested the exception. 32 (h) As used in this subdivision the term "agency" or "state agency" 33 means only a state department, board, bureau, division, council or 34 office and any public corporation the majority of whose members are 35 appointed by the governor. 36 § 2. This act shall take effect immediately.
