Bill Text: NY S08486 | 2021-2022 | General Assembly | Introduced
Bill Title: Extends provisions of the freedom of information law to the state legislature.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2022-03-07 - REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS [S08486 Detail]
Download: New_York-2021-S08486-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 8486 IN SENATE March 7, 2022 ___________ Introduced by Sen. MARTUCCI -- read twice and ordered printed, and when printed to be committed to the Committee on Investigations and Govern- ment Operations AN ACT to amend the public officers law, the civil practice law and rules and the executive law, in relation to extending provisions of the freedom of information law to the state legislature; and to repeal section 88 of the public officers law, section 70-0113 of the environ- mental conservation law and subdivision 4 of section 308 of the county law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivisions 2 and 3 of section 86 of the public officers 2 law, as added by chapter 933 of the laws of 1977, are amended and a new 3 subdivision 10 is added to read as follows: 4 2. "State legislature" means the [legislature of the state of New5York, including] New York state senate, New York state assembly, any 6 committee, subcommittee, joint committee, select committee, or commis- 7 sion thereof, and any members, officers, representatives and employees 8 thereof. 9 3. "Agency" means any state or municipal department, board, bureau, 10 division, commission, committee, public authority, public corporation, 11 council, office, or other governmental entity performing a governmental 12 or proprietary function for the state or any one or more municipalities 13 thereof, except the judiciary [or the state legislature]. 14 10. "Respective house of the state legislature" means the New York 15 state senate, New York state assembly, and any corresponding committee, 16 subcommittee, joint committee, select committee, or commission thereof, 17 and any members, officers, representatives and employees thereof. 18 § 2. Section 87 of the public officers law, as added by chapter 933 of 19 the laws of 1977, paragraph (a) and the opening paragraph of paragraph 20 (b) of subdivision 1 as amended by chapter 80 of the laws of 1983, 21 subparagraph iii of paragraph (b) of subdivision 1 as amended and para- 22 graph (c) of subdivision 1 and subdivision 5 as added by chapter 223 of 23 the laws of 2008, the opening paragraph and paragraph (e) of subdivision EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD09875-03-2S. 8486 2 1 2 as amended and subdivision 6 as added by chapter 808 of the laws of 2 2021, paragraph (d) of subdivision 2 as amended by chapter 289 of the 3 laws of 1990, paragraph (f) of subdivision 2 as amended by chapter 403 4 of the laws of 2003, paragraph (g) of subdivision 2 as amended by chap- 5 ter 510 of the laws of 1999, paragraph (i) of subdivision 2 as amended 6 by chapter 154 of the laws of 2010, paragraph (j) of subdivision 2 as 7 added by chapter 746 of the laws of 1988, paragraph (k) of subdivision 2 8 as separately added by chapters 19, 20 and 23 of the laws of 2009, para- 9 graph (l) of subdivision 2 as added by section 12 of part II of chapter 10 59 of the laws of 2010, paragraph (m) of subdivision 2 as added by chap- 11 ter 189 of the laws of 2013, paragraph (n) of subdivision 2 as separate- 12 ly added by chapters 99, 101, and 123 of the laws of 2014, paragraph (o) 13 of subdivision 2 as added by chapter 222 of the laws of 2015, paragraph 14 (p) of subdivision 2 as added by section 7 of subpart A of part ZZZ of 15 chapter 59 of the laws of 2019, paragraph (p) of subdivision 2 as added 16 by chapter 148 of the laws of 2019, paragraph (q) of subdivision 2 as 17 added by chapter 145 of the laws of 2019, paragraph (r) of subdivision 2 18 as added by chapter 421 of the laws of 2021, paragraph (r) of subdivi- 19 sion 2 as added by chapter 460 of the laws of 2021, paragraph (r) of 20 subdivision 2 as added by chapter 773 of the laws of 2021, paragraph (c) 21 of subdivision 3 as amended by chapter 499 of the laws of 2008, subdivi- 22 sion 4 as added by chapter 890 of the laws of 1981, paragraph (c) of 23 subdivision 4 as added by chapter 102 of the laws of 2007 and subdivi- 24 sions 4-a and 4-b as added by chapter 96 of the laws of 2020, is amended 25 to read as follows: 26 § 87. Access to agency or state legislature records. 1. (a) Within 27 sixty days after the effective date of this article, the governing body 28 of each public corporation shall promulgate uniform rules and regu- 29 lations for all agencies in such public corporation pursuant to such 30 general rules and regulations as may be promulgated by the committee on 31 open government in conformity with the provisions of this article, 32 pertaining to the administration of this article. 33 (b) Each agency and each house of the state legislature shall promul- 34 gate rules and regulations, in conformity with this article and applica- 35 ble rules and regulations promulgated pursuant to the provisions of 36 paragraph (a) of this subdivision, and pursuant to such general rules 37 and regulations as may be promulgated by the committee on open govern- 38 ment in conformity with the provisions of this article, pertaining to 39 the availability of records and procedures to be followed, including, 40 but not limited to: 41 i. the times and places such records are available; 42 ii. the persons from whom such records may be obtained[,]; and 43 iii. the fees for copies of records which shall not exceed twenty-five 44 cents per photocopy not in excess of nine inches by fourteen inches, or 45 the actual cost of reproducing any other record in accordance with the 46 provisions of paragraph (c) of this subdivision, except when a different 47 fee is otherwise prescribed by statute. 48 (c) In determining the actual cost of reproducing a record, an agency 49 and the state legislature may include only: 50 i. an amount equal to the hourly salary attributed to the lowest paid 51 employee of an agency or [employee] respective house of the state legis- 52 lature who has the necessary skill required to prepare a copy of the 53 requested record; 54 ii. the actual cost of the storage devices or media provided to the 55 person making the request in complying with such request;S. 8486 3 1 iii. the actual cost to the agency or to the respective house of the 2 state legislature of engaging an outside professional service to prepare 3 a copy of a record, but only when an agency's or respective house of the 4 state legislature's information technology equipment is inadequate to 5 prepare a copy, if such service is used to prepare the copy; and 6 iv. preparing a copy shall not include search time or administrative 7 costs, and no fee shall be charged unless at least two hours of agency 8 or respective house of the state legislature employee time is needed to 9 prepare a copy of the record requested. A person requesting a record 10 shall be informed of the estimated cost of preparing a copy of the 11 record if more than two hours of an agency or respective house of the 12 state legislature employee's time is needed, or if an outside profes- 13 sional service would be retained to prepare a copy of the record. 14 2. Each agency and the respective house of the state legislature 15 shall, in accordance with its published rules, make available for public 16 inspection and copying all records, except those records or portions 17 thereof that may be withheld pursuant to the exceptions of rights of 18 access appearing in this subdivision. A denial of access shall not be 19 based solely on the category or type of such record and shall be valid 20 only when there is a particularized and specific justification for such 21 denial. Each agency and the respective house of the state legislature 22 shall, in accordance with its published rules, make available for public 23 inspection and copying all records, except that such agency and the 24 respective house of the state legislature may deny access to records or 25 portions thereof that: 26 (a) are specifically exempted from disclosure by state or federal 27 statute; 28 (b) if disclosed would constitute an unwarranted invasion of personal 29 privacy under the provisions of subdivision two of section eighty-nine 30 of this article; 31 (c) if disclosed would impair present or imminent contract awards or 32 collective bargaining negotiations provided, however, that the proposed 33 terms of an agreement between a public employer and an employee organ- 34 ization, as those terms are defined in article fourteen of the civil 35 service law, that require ratification by members of the employee organ- 36 ization or by the public employer, where applicable, or approval of such 37 provisions by the appropriate legislative body as required by section 38 two hundred four-a of the civil service law, shall be made available to 39 the public no later than when such proposed terms are sent to members of 40 the employee organization for ratification, when such terms are 41 presented to the employer for ratification, where applicable, or when 42 the provisions of such agreement requiring approval by the appropriate 43 legislative body pursuant to section two hundred four-a of the civil 44 service law are submitted to such body, whichever date is earliest. 45 Additionally, a copy of the proposed terms of such agreement shall be 46 placed on the website of the applicable public employer, if such 47 websites exist, and within the local public libraries and offices of 48 such public employer, or in the case of collective bargaining agreements 49 negotiated by the state, on the website of the office of employee 50 relations on such date; 51 (d) are trade secrets or are submitted to an agency or to the respec- 52 tive house of the state legislature by a commercial enterprise or 53 derived from information obtained from a commercial enterprise and which 54 if disclosed would cause substantial injury to the competitive position 55 of the subject enterprise;S. 8486 4 1 (e) are prepared or created for law enforcement purposes only to the 2 extent that disclosure would: 3 i. interfere with law enforcement investigations or judicial 4 proceedings, provided however, that any agency considering denying 5 access pursuant to this subparagraph shall proceed in accordance with 6 subdivision six of this section; 7 ii. deprive a person of a right to a fair trial or impartial adjudi- 8 cation; 9 iii. identify a confidential source or disclose confidential informa- 10 tion relating to a criminal investigation; or 11 iv. reveal criminal investigative techniques or procedures, except 12 routine techniques and procedures; 13 (f) if disclosed could endanger critical infrastructure or the life or 14 safety of any person; 15 (g) are inter-agency or intra-agency materials which are not: 16 i. statistical or factual tabulations or data; 17 ii. instructions to staff that affect the public; 18 iii. final agency policy or determinations; 19 iv. external audits, including but not limited to audits performed by 20 the comptroller and the federal government; [or] 21 (g-1) are materials exchanged within the state legislature which are 22 not: 23 i. statistical or factual tabulations or data; 24 ii. instructions to staff that affect the public; 25 iii. final policy or determinations of the respective house of the 26 state legislature; 27 iv. external audits, including but not limited to audits performed by 28 the comptroller and the federal government; 29 (h) are examination questions or answers which are requested prior to 30 the final administration of such questions[.]; 31 (i) if disclosed, would jeopardize the capacity of an agency, the 32 state legislature, or an entity that has shared information with an 33 agency or the state legislature to guarantee the security of its infor- 34 mation technology assets, such assets encompassing both electronic 35 information systems and infrastructures; [or] 36 (j) are photographs, microphotographs, videotape or other recorded 37 images prepared under authority of section eleven hundred eleven-a of 38 the vehicle and traffic law[.]; 39 (k) are photographs, microphotographs, videotape or other recorded 40 images prepared under authority of section eleven hundred eleven-b of 41 the vehicle and traffic law[.]; 42 (l) are photographs, microphotographs, videotape or other recorded 43 images produced by a bus lane photo device prepared under authority of 44 section eleven hundred eleven-c of the vehicle and traffic law[.]; 45 (m) are photographs, microphotographs, videotape or other recorded 46 images prepared under the authority of section eleven hundred eighty-b 47 of the vehicle and traffic law[.]; 48 (n) are photographs, microphotographs, videotape or other recorded 49 images prepared under authority of section eleven hundred eleven-d of 50 the vehicle and traffic law[.]; 51 (o) are photographs, microphotographs, videotape or other recorded 52 images prepared under authority of section eleven hundred eleven-e of 53 the vehicle and traffic law[.]; 54 (p) are data or images produced by an electronic toll collection 55 system under authority of article forty-four-C of the vehicle and traf-S. 8486 5 1 fic law and in title three of article three of the public authorities 2 law[.]; 3 (p) are photographs, microphotographs, videotape or other recorded 4 images prepared under the authority of section eleven hundred eighty-d 5 of the vehicle and traffic law[.]; 6 (q) are photographs, microphotographs, videotape or other recorded 7 images prepared under authority of section eleven hundred seventy-four-a 8 of the vehicle and traffic law[.]; 9 (r) are photographs, microphotographs, videotape or other recorded 10 images prepared under the authority of section eleven hundred eighty-e 11 of the vehicle and traffic law[.12(r)]; 13 (s) are photographs, microphotographs, videotape or other recorded 14 images prepared under authority of section eleven hundred eleven-f of 15 the vehicle and traffic law[.16(r)]; or 17 (t) are photographs, microphotographs, videotape or other recorded 18 images or information and data prepared under authority of section three 19 hundred eighty-five-a of the vehicle and traffic law. 20 3. Each agency and respective house of the state legislature shall 21 maintain: 22 (a) a record of the final vote of each member in every agency or state 23 legislature proceeding in which the member votes; 24 (b) a record of votes of each member in every session and every 25 committee and subcommittee meeting in which the member of the senate or 26 assembly votes; 27 [(b)] (c) a record setting forth the name, public office address, 28 title and salary of every officer or employee of the agency or the state 29 legislature; and 30 [(c)] (d) a reasonably detailed current list by subject matter of all 31 records in the possession of the agency or state legislature, whether or 32 not available under this article. Each agency and each respective house 33 of the state legislature shall update its subject matter list annually, 34 and the date of the most recent update shall be conspicuously indicated 35 on the list. [Each] The state legislature and each state agency as 36 defined in subdivision four of this section that maintains a website 37 shall post its current list on its website and such posting shall be 38 linked to the website of the committee on open government. Any such 39 agency or part of the state legislature that does not maintain a website 40 shall arrange to have its list posted on the website of the committee on 41 open government. 42 4. (a) Each state agency or respective house of the state legislature 43 which maintains records containing trade secrets, to which access may be 44 denied pursuant to paragraph (d) of subdivision two of this section, 45 shall promulgate regulations in conformity with the provisions of subdi- 46 vision five of section eighty-nine of this article pertaining to such 47 records, including, but not limited to the following: 48 (1) the manner of identifying the records or parts; 49 (2) the manner of identifying persons within the agency or respective 50 house of the state legislature to whose custody the records or parts 51 will be charged and for whose inspection and study the records will be 52 made available; 53 (3) the manner of safeguarding against any unauthorized access to the 54 records. 55 (b) As used in this subdivision the term "agency" or "state agency" 56 means only a state department, board, bureau, division, council [or],S. 8486 6 1 office and any public corporation the majority of whose members are 2 appointed by the governor. 3 (c) As used in this subdivision the term "state legislature" means the 4 legislature as defined in subdivision two of section eighty-six of this 5 article. 6 (d) Each state agency and respective house of the state legislature 7 that maintains a website shall post information related to this article 8 and article six-A of this chapter on its website. Such information shall 9 include, at a minimum, contact information for the persons from whom 10 records of the agency or respective house of the state legislature may 11 be obtained, the times and places such records are available for 12 inspection and copying, and information on how to request records in 13 person, by mail, and, if the agency or respective house of the state 14 legislature accepts requests for records electronically, by e-mail. This 15 posting shall be linked to the website of the committee on open govern- 16 ment. 17 4-a. A law enforcement agency responding to a request for law enforce- 18 ment disciplinary records as defined in section eighty-six of this arti- 19 cle shall redact any portion of such record containing the information 20 specified in subdivision two-b of section eighty-nine of this article 21 prior to disclosing such record under this article. 22 4-b. A law enforcement agency responding to a request for law enforce- 23 ment disciplinary records, as defined in section eighty-six of this 24 article, may redact any portion of such record containing the informa- 25 tion specified in subdivision two-c of section eighty-nine of this arti- 26 cle prior to disclosing such record under this article. 27 5. (a) An agency and the respective house of the state legislature 28 shall provide records on the medium requested by a person, if the agency 29 or the respective house of the state legislature can reasonably make 30 such copy or have such copy made by engaging an outside professional 31 service. Records provided in a computer format shall not be encrypted. 32 (b) No agency nor the state legislature shall enter into or renew a 33 contract for the creation or maintenance of records if such contract 34 impairs the right of the public to inspect or copy the agency's or the 35 state legislature's records. 36 6. When a request is made for agency or state legislative records and 37 the agency or house of the state legislature receiving such request is 38 considering denying access pursuant to subparagraph i of paragraph (e) 39 of subdivision two of this section on the grounds that disclosure would 40 interfere with a judicial proceeding, the agency or house of the state 41 legislature receiving such request shall promptly notify, in writing, 42 the judge before whom such judicial proceeding is pending and the person 43 making the request. Such judge shall notify the person requesting the 44 record of its receipt, and offer the person requesting the record a 45 reasonable opportunity to be heard. After due deliberation, such judge 46 shall determine whether access to such records should be denied pursuant 47 to subparagraph i of paragraph (e) of subdivision two of this section 48 and shall submit such determination in writing to the agency or house of 49 the state legislature and the person requesting the record. The agency 50 shall then proceed as required pursuant to this article, in accordance 51 with the court's determination. 52 7. (a) Each agency and house of the state legislature shall publish, 53 on its internet website, to the extent practicable, records or portions 54 of records that are available to the public pursuant to the provisions 55 of this article, or which, in consideration of their nature, content or 56 subject matter, are determined by the agency or house of the stateS. 8486 7 1 legislature to be of substantial interest to the public. Any such 2 records may be removed from the internet website when the agency or 3 house of the state legislature determines that they are no longer of 4 substantial interest to the public. Any such records may be removed from 5 the internet website when they have reached the end of their legal 6 retention period. Guidance on creating records in accessible formats and 7 ensuring their continuing accessibility shall be available from the 8 office of information technology services and the state archives. 9 (b) The provisions of paragraph (a) of this subdivision shall not 10 apply to records or portions of records the disclosure of which would 11 constitute an unwarranted invasion of personal privacy in accordance 12 with subdivision two of section eighty-nine of this article. 13 (c) The committee on open government shall promulgate guidelines to 14 effectuate this subdivision. 15 (d) Nothing in this subdivision shall be construed as to limit or 16 abridge the power of an agency or house of the state legislature to 17 publish records on its internet website that are subject to the 18 provisions of this article prior to a written request or prior to a 19 frequent request. 20 § 3. Section 88 of the public officers law is REPEALED. 21 § 4. Section 89 of the public officers law, as added by chapter 933 of 22 the laws of 1977, paragraph (a) of subdivision 1 as amended by chapter 23 33 of the laws of 1984, paragraph (b) of subdivision 1 as amended by 24 chapter 182 of the laws of 2006, subdivision 2 as amended by section 11 25 of part U of chapter 61 of the laws of 2011, paragraph (b) of subdivi- 26 sion 2 as amended by section 2 of part GGG of chapter 59 of the laws of 27 2019, subdivision 2-a as added by chapter 652 of the laws of 1983, 28 subdivisions 2-b and 2-c as added by chapter 96 of the laws of 2020, 29 subdivision 3 as amended by chapter 223 of the laws of 2008, paragraph 30 (c) of subdivision 3 as added by chapter 47 of the laws of 2018, subdi- 31 vision 4 as amended by chapter 22 of the laws of 2005, paragraph (c) of 32 subdivision 4 as amended by chapter 453 of the laws of 2017, paragraph 33 (d) of subdivision 4 as added by chapter 487 of the laws of 2016, subdi- 34 vision 5 as added by chapter 890 of the laws of 1981, paragraph (a) of 35 subdivision 5 as amended by chapter 403 of the laws of 2003, paragraph 36 (d) of subdivision 5 as amended by chapter 707 of the laws of 2019, 37 subdivision 6 as amended and subdivision 10 as added by chapter 808 of 38 the laws of 2021, subdivision 7 as added by chapter 783 of the laws of 39 1983, subdivision 8 as added by chapter 705 of the laws of 1989, and 40 subdivision 9 as added by chapter 351 of the laws of 2008, is amended to 41 read as follows: 42 § 89. General provisions relating to access to records; certain cases. 43 The provisions of this section apply to access to all records, except as 44 hereinafter specified: 45 1. (a) The committee on open government is continued and shall consist 46 of the lieutenant governor or the delegate of such officer, the secre- 47 tary of state or the delegate of such officer, whose office shall act as 48 secretariat for the committee, the commissioner of the office of general 49 services or the delegate of such officer, the director of the budget or 50 the delegate of such officer, and seven other persons, none of whom 51 shall hold any other state or local public office except the represen- 52 tative of local governments as set forth herein, to be appointed as 53 follows: five by the governor, at least two of whom are or have been 54 representatives of the news media, one of whom shall be a representative 55 of local government who, at the time of appointment, is serving as a 56 duly elected officer of a local government, one by the temporary presi-S. 8486 8 1 dent of the senate, and one by the speaker of the assembly. The persons 2 appointed by the temporary president of the senate and the speaker of 3 the assembly shall be appointed to serve, respectively, until the expi- 4 ration of the terms of office of the temporary president and the speaker 5 to which the temporary president and speaker were elected. The four 6 persons presently serving by appointment of the governor for fixed terms 7 shall continue to serve until the expiration of their respective terms. 8 Thereafter, their respective successors shall be appointed for terms of 9 four years. The member representing local government shall be appointed 10 for a term of four years, so long as such member shall remain a duly 11 elected officer of a local government. The committee shall hold no less 12 than two meetings annually, but may meet at any time. The members of the 13 committee shall be entitled to reimbursement for actual expenses 14 incurred in the discharge of their duties. 15 (b) The committee shall: 16 i. furnish to any agency and to each house of the state legislature 17 advisory guidelines, opinions or other appropriate information regarding 18 this article; 19 ii. furnish to any person advisory opinions or other appropriate 20 information regarding this article; 21 iii. promulgate rules and regulations with respect to the implementa- 22 tion of subdivision one and paragraph (c) of subdivision three of 23 section eighty-seven of this article; 24 iv. request from any agency and from either house of the state legis- 25 lature such assistance, services and information as will enable the 26 committee to effectively carry out its powers and duties; 27 v. develop a form, which shall be made available on the internet, that 28 may be used by the public to request a record; and 29 vi. report on its activities and findings regarding this article and 30 article seven of this chapter, including recommendations for changes in 31 the law, to the governor and the legislature annually, on or before 32 December fifteenth. 33 2. (a) The committee on [public access to records] open government may 34 promulgate guidelines regarding deletion of identifying details or with- 35 holding of records otherwise available under this article to prevent 36 unwarranted invasions of personal privacy. In the absence of such guide- 37 lines, an agency and the respective house of the state legislature may 38 delete identifying details when it makes records available. 39 (b) An unwarranted invasion of personal privacy includes, but shall 40 not be limited to: 41 i. disclosure of employment, medical or credit histories or personal 42 references of applicants for employment; 43 ii. disclosure of items involving the medical or personal records of a 44 client or patient in a medical facility; 45 iii. sale or release of lists of names and addresses if such lists 46 would be used for solicitation or fund-raising purposes; 47 iv. disclosure of information of a personal nature when disclosure 48 would result in economic or personal hardship to the subject party and 49 such information is not relevant to the work of the agency or respective 50 house of the state legislature requesting or maintaining it; 51 v. disclosure of information of a personal nature reported in confi- 52 dence to an agency or to the state legislature and not relevant to the 53 ordinary work of such agency or the state legislature; 54 vi. information of a personal nature contained in a workers' compen- 55 sation record, except as provided by section one hundred ten-a of the 56 workers' compensation law;S. 8486 9 1 vii. disclosure of electronic contact information, such as an e-mail 2 address or a social network username, that has been collected from a 3 taxpayer under section one hundred four of the real property tax law; 4 [or] 5 viii. disclosure of law enforcement arrest or booking photographs of 6 an individual, unless public release of such photographs will serve a 7 specific law enforcement purpose and disclosure is not precluded by any 8 state or federal laws[.]; or 9 ix. disclosure of communications of a personal nature between legisla- 10 tors and their constituents. 11 (c) Unless otherwise provided by this article, disclosure shall not be 12 construed to constitute an unwarranted invasion of personal privacy 13 pursuant to paragraphs (a) and (b) of this subdivision: 14 i. when identifying details are deleted; 15 ii. when the person to whom a record pertains consents in writing to 16 disclosure; 17 iii. when upon presenting reasonable proof of identity, a person seeks 18 access to records pertaining to him or her; or 19 iv. when a record or group of records relates to the right, title or 20 interest in real property, or relates to the inventory, status or char- 21 acteristics of real property, in which case disclosure and providing 22 copies of such record or group of records shall not be deemed an unwar- 23 ranted invasion of personal privacy, provided that nothing herein shall 24 be construed to authorize the disclosure of electronic contact informa- 25 tion, such as an e-mail address or a social network username, that has 26 been collected from a taxpayer under section one hundred four of the 27 real property tax law. 28 2-a. Nothing in this article shall permit disclosure which constitutes 29 an unwarranted invasion of personal privacy as defined in subdivision 30 two of this section if such disclosure is prohibited under section nine- 31 ty-six of this chapter. 32 2-b. For records that constitute law enforcement disciplinary records 33 as defined in subdivision six of section eighty-six of this article, a 34 law enforcement agency shall redact the following information from such 35 records prior to disclosing such records under this article: 36 (a) items involving the medical history of a person employed by a law 37 enforcement agency as defined in section eighty-six of this article as a 38 police officer, peace officer, or firefighter or firefighter/paramedic, 39 not including records obtained during the course of an agency's investi- 40 gation of such person's misconduct that are relevant to the disposition 41 of such investigation; 42 (b) the home addresses, personal telephone numbers, personal cell 43 phone numbers, personal e-mail addresses of a person employed by a law 44 enforcement agency as defined in section eighty-six of this article as a 45 police officer, peace officer, or firefighter or firefighter/paramedic, 46 or a family member of such a person, a complainant or any other person 47 named in a law enforcement disciplinary record, except where required 48 pursuant to article fourteen of the civil service law, or in accordance 49 with subdivision four of section two hundred eight of the civil service 50 law, or as otherwise required by law. This paragraph shall not prohibit 51 other provisions of law regarding work-related, publicly available 52 information such as title, salary, and dates of employment; 53 (c) any social security numbers; or 54 (d) disclosure of the use of an employee assistance program, mental 55 health service, or substance abuse assistance service by a person 56 employed by a law enforcement agency as defined in section eighty-six ofS. 8486 10 1 this article as a police officer, peace officer, or firefighter or 2 firefighter/paramedic, unless such use is mandated by a law enforcement 3 disciplinary proceeding that may otherwise be disclosed pursuant to this 4 article. 5 2-c. For records that constitute "law enforcement disciplinary 6 records" as defined in subdivision six of section eighty-six of this 7 article, a law enforcement agency may redact records pertaining to tech- 8 nical infractions as defined in subdivision nine of section eighty-six 9 of this article prior to disclosing such records under this article. 10 3. (a) Each entity subject to the provisions of this article, within 11 five business days of the receipt of a written request for a record 12 reasonably described, shall make such record available to the person 13 requesting it, deny such request in writing or furnish a written 14 acknowledgement of the receipt of such request and a statement of the 15 approximate date, which shall be reasonable under the circumstances of 16 the request, when such request will be granted or denied, including, 17 where appropriate, a statement that access to the record will be deter- 18 mined in accordance with subdivision five of this section. [An] Neither 19 an agency nor the state legislature shall [not] deny a request on the 20 basis that the request is voluminous or that locating or reviewing the 21 requested records or providing the requested copies is burdensome 22 because the agency or respective house of the state legislature lacks 23 sufficient staffing or on any other basis if the agency or respective 24 house of the state legislature may engage an outside professional 25 service to provide copying, programming or other services required to 26 provide the copy, the costs of which the agency may recover pursuant to 27 paragraph (c) of subdivision one of section eighty-seven of this arti- 28 cle. An agency or respective house of the state legislature may require 29 a person requesting lists of names and addresses to provide a written 30 certification that such person will not use such lists of names and 31 addresses for solicitation or fund-raising purposes and will not sell, 32 give or otherwise make available such lists of names and addresses to 33 any other person for the purpose of allowing that person to use such 34 lists of names and addresses for solicitation or fund-raising purposes. 35 If an agency or respective house of the state legislature determines to 36 grant a request in whole or in part, and if circumstances prevent 37 disclosure to the person requesting the record or records within twenty 38 business days from the date of the acknowledgement of the receipt of the 39 request, the agency or respective house of the state legislature shall 40 state, in writing, both the reason for the inability to grant the 41 request within twenty business days and a date certain within a reason- 42 able period, depending on the circumstances, when the request will be 43 granted in whole or in part. Upon payment of, or offer to pay, the fee 44 prescribed therefor, the entity shall provide a copy of such record and 45 certify to the correctness of such copy if so requested, or as the case 46 may be, shall certify that it does not have possession of such record or 47 that such record cannot be found after diligent search. Nothing in this 48 article shall be construed to require any entity to prepare any record 49 not possessed or maintained by such entity except the records specified 50 in subdivision three of section eighty-seven [and subdivision three of51section eighty-eight] of this article. When an agency or the respective 52 house of the state legislature has the ability to retrieve or extract a 53 record or data maintained in a computer storage system with reasonable 54 effort, it shall be required to do so. When doing so requires less 55 employee time than engaging in manual retrieval or redactions from non- 56 electronic records, the agency and respective house of the state legis-S. 8486 11 1 lature shall be required to retrieve or extract such record or data 2 electronically. Any programming necessary to retrieve a record main- 3 tained in a computer storage system and to transfer that record to the 4 medium requested by a person or to allow the transferred record to be 5 read or printed shall not be deemed to be the preparation or creation of 6 a new record. 7 (b) All entities shall, provided such entity has reasonable means 8 available, accept requests for records submitted in the form of elec- 9 tronic mail and shall respond to such requests by electronic mail, using 10 forms, to the extent practicable, consistent with the form or forms 11 developed by the committee on open government pursuant to subdivision 12 one of this section and provided that the written requests do not seek a 13 response in some other form. 14 (c) Each state agency, as defined in subdivision five of this section, 15 that maintains a website shall ensure its website provides for the 16 online submission of a request for records pursuant to this article. 17 4. (a) Except as provided in subdivision five of this section, any 18 person denied access to a record may within thirty days appeal in writ- 19 ing such denial to the head, chief executive or governing body of the 20 entity, or the person therefor designated by such head, chief executive, 21 or governing body, who shall within ten business days of the receipt of 22 such appeal fully explain in writing to the person requesting the record 23 the reasons for further denial, or provide access to the record sought. 24 In addition, each agency or the respective house of the state legisla- 25 ture shall immediately forward to the committee on open government a 26 copy of such appeal when received by the agency or such house and the 27 ensuing determination thereon. Failure by an agency or respective house 28 of the state legislature to conform to the provisions of subdivision 29 three of this section shall constitute a denial. 30 (b) Except as provided in subdivision five of this section, a person 31 denied access to a record in an appeal determination under the 32 provisions of paragraph (a) of this subdivision may bring a proceeding 33 for review of such denial pursuant to article seventy-eight of the civil 34 practice law and rules. In the event that access to any record is denied 35 pursuant to the provisions of subdivision two of section eighty-seven of 36 this article, the agency or respective house of the state legislature 37 involved shall have the burden of proving that such record falls within 38 the provisions of such subdivision two. Failure by an agency or respec- 39 tive house of the state legislature to conform to the provisions of 40 paragraph (a) of this subdivision shall constitute a denial. 41 (c) The court in such a proceeding: (i) may assess, against such agen- 42 cy involved, reasonable attorney's fees and other litigation costs 43 reasonably incurred by such person in any case under the provisions of 44 this section in which such person has substantially prevailed, and when 45 the agency failed to respond to a request or appeal within the statutory 46 time; and (ii) shall assess, against such agency involved, reasonable 47 attorney's fees and other litigation costs reasonably incurred by such 48 person in any case under the provisions of this section in which such 49 person has substantially prevailed and the court finds that the agency 50 had no reasonable basis for denying access. 51 (d) (i) Appeal to the appellate division of the supreme court must be 52 made in accordance with subdivision (a) of section fifty-five hundred 53 thirteen of the civil practice law and rules. 54 (ii) An appeal from an agency or respective house of the state legis- 55 lature taken from an order of the court requiring disclosure of any of 56 all records sought:S. 8486 12 1 (A) shall be given preference; 2 (B) shall be brought on for argument on such terms and conditions as 3 the presiding justice may direct, upon application of any party to the 4 proceedings; and 5 (C) shall be deemed abandoned if the agency or respective house of the 6 state legislature fails to serve and file a record and brief within 7 sixty days after the date of service upon the petitioner of the notice 8 of appeal, unless consent to further extension is given by all parties, 9 or unless further extension is granted by the court upon such terms as 10 may be just and upon good cause shown. 11 5. (a) (1) A person acting pursuant to law or regulation who, subse- 12 quent to the effective date of this subdivision, submits any information 13 to any state agency or to the respective house of the state legislature 14 may, at the time of submission, request that the agency or such house 15 provisionally except such information from disclosure under paragraph 16 (d) of subdivision two of section eighty-seven of this article. Where 17 the request itself contains information which if disclosed would defeat 18 the purpose for which the exception is sought, such information shall 19 also be provisionally excepted from disclosure. 20 (1-a) A person or entity who submits or otherwise makes available any 21 records to any agency or house of the state legislature, may, at any 22 time, identify those records or portions thereof that may contain crit- 23 ical infrastructure information, and request that the agency or house of 24 the state legislature that maintains such records except such informa- 25 tion from disclosure under subdivision two of section eighty-seven of 26 this article. Where the request itself contains information which if 27 disclosed would defeat the purpose for which the exception is sought, 28 such information shall also be provisionally excepted from disclosure. 29 (2) The request for an exception shall be in writing, shall specif- 30 ically identify which portions of the record are the subject of the 31 request for exception and shall state the reasons why the information 32 should be provisionally excepted from disclosure. Any such request for 33 an exception shall be effective for a five-year period from the agency's 34 or respective house of the state legislature's receipt thereof. 35 Provided, however, that not less than sixty days prior to the expiration 36 of the then current term of the exception request, the submitter may 37 apply to the agency or respective house of the state legislature for a 38 two-year extension of its exception request. Upon timely receipt of a 39 request for an extension of an exception request, an agency or respec- 40 tive house of the state legislature may either (A) perform a cursory 41 review of the application and grant the extension should it find any 42 justification for such determination, or (B) commence the procedure set 43 forth in paragraph (b) of this subdivision to make a final determination 44 granting or terminating such exception. 45 (3) Information submitted as provided in subparagraphs one and one-a 46 of this paragraph shall be provisionally excepted from disclosure and be 47 maintained apart by the agency and the respective house of the state 48 legislature from all other records until the expiration of the submit- 49 ter's exception request or fifteen days after the entitlement to such 50 exception has been finally determined or such further time as ordered by 51 a court of competent jurisdiction. 52 (b) [On the] During the effective period of an exception request under 53 this subdivision, on the initiative of the agency or either house of the 54 state legislature at any time, or upon the request of any person for a 55 record excepted from disclosure pursuant to this subdivision, the agency 56 or respective house of the state legislature shall:S. 8486 13 1 (1) inform the person who requested the exception of the agency's or 2 such house's intention to determine whether such exception should be 3 granted or continued; 4 (2) permit the person who requested the exception, within ten business 5 days of receipt of notification from the agency or respective house of 6 the state legislature, to submit a written statement of the necessity 7 for the granting or continuation of such exception; 8 (3) within seven business days of receipt of such written statement, 9 or within seven business days of the expiration of the period prescribed 10 for submission of such statement, issue a written determination grant- 11 ing, continuing or terminating such exception and stating the reasons 12 therefor; copies of such determination shall be served upon the person, 13 if any, requesting the record, the person who requested the exception, 14 and the committee on [public access to records] open government. 15 (c) A denial of an exception from disclosure under paragraph (b) of 16 this subdivision may be appealed by the person submitting the informa- 17 tion and a denial of access to the record may be appealed by the person 18 requesting the record in accordance with this subdivision: 19 (1) Within seven business days of receipt of written notice denying 20 the request, the person may file a written appeal from the determination 21 of the agency or the respective house of the state legislature with the 22 head of the agency or respective house of the state legislature, the 23 chief executive officer or governing body or their designated represen- 24 tatives. 25 (2) The appeal shall be determined within ten business days of the 26 receipt of the appeal. Written notice of the determination shall be 27 served upon the person, if any, requesting the record, the person who 28 requested the exception and the committee on [public access to records] 29 open government. The notice shall contain a statement of the reasons for 30 the determination. 31 (d) (i) A proceeding to review an adverse determination pursuant to 32 paragraph (c) of this subdivision may be commenced pursuant to article 33 seventy-eight of the civil practice law and rules. Such proceeding, when 34 brought by a person seeking an exception from disclosure pursuant to 35 this subdivision, must be commenced within fifteen days of the service 36 of the written notice containing the adverse determination provided for 37 in subparagraph two of paragraph (c) of this subdivision. The proceeding 38 shall be given preference and shall be brought on for argument on such 39 terms and conditions as the presiding justice may direct, not to exceed 40 forty-five days. 41 (ii) Appeal to the appellate division of the supreme court must be 42 made in accordance with subdivision (a) of section fifty-five hundred 43 thirteen of the civil practice law and rules. 44 (iii) An appeal taken from an order of the court requiring disclosure: 45 (A) shall be given preference; and 46 (B) shall be brought on for argument on such terms and conditions as 47 the presiding justice may direct, not to exceed sixty days, upon appli- 48 cation by any party to the proceeding; and 49 (C) shall be deemed abandoned when the party requesting an exclusion 50 from disclosure fails to serve and file a record and brief within 51 [sixty] thirty days after the date of the notice of appeal, unless 52 consent of further extension is given by all parties, or unless further 53 extension is granted by the court upon such terms as may be just and 54 upon good cause shown.S. 8486 14 1 (e) The person requesting an exception from disclosure pursuant to 2 this subdivision shall in all proceedings have the burden of proving 3 entitlement to the exception. 4 (f) Where the agency or the respective house of the state legislature 5 denies access to a record pursuant to paragraph [(d) of] (b) of this 6 subdivision in conjunction with subdivision two of section eighty-seven 7 of this article, the agency or respective house of the state legislature 8 shall have the burden of proving that the record falls within the 9 provisions of such exception. 10 (g) Nothing in this subdivision shall be construed to deny any person 11 access, pursuant to the remaining provisions of this article, to any 12 record or part excepted from disclosure upon the express written consent 13 of the person who had requested the exception. 14 (h) As used in this subdivision the term "agency" or "state agency" 15 means only a state department, board, bureau, division, council or 16 office and any public corporation the majority of whose members are 17 appointed by the governor. 18 (i) As used in this subdivision the term "state legislature" means the 19 legislature as defined in subdivision two of section eighty-six of this 20 article. 21 6. Nothing in this article shall be construed to limit or abridge any 22 otherwise available right of access at law or in equity of any party to 23 records. A denial of access to records or to portions thereof pursuant 24 to this article shall not limit or abridge any party's right of access 25 to such records pursuant to the civil practice law and rules, the crimi- 26 nal procedure law, or any other law. 27 7. Nothing in this article shall require the disclosure of the home 28 address of an officer or employee, former officer or employee, or of a 29 retiree of a public employees' retirement system; nor shall anything in 30 this article require the disclosure of the name or home address of a 31 beneficiary of a public employees' retirement system or of an applicant 32 for appointment to public employment; provided however, that nothing in 33 this subdivision shall limit or abridge the right of an employee organ- 34 ization, certified or recognized for any collective negotiating unit of 35 an employer pursuant to article fourteen of the civil service law, to 36 obtain the name or home address of any officer, employee or retiree of 37 such employer, if such name or home address is otherwise available under 38 this article. 39 8. Any person who, with intent to prevent the public inspection of a 40 record pursuant to this article, willfully conceals or destroys any such 41 record shall be guilty of a violation. 42 9. When records maintained electronically include items of information 43 that would be available under this article, as well as items of informa- 44 tion that may be withheld, an agency or respective house of the state 45 legislature in designing its information retrieval methods, whenever 46 practicable and reasonable, shall do so in a manner that permits the 47 segregation and retrieval of available items in order to provide maximum 48 public access. 49 10. Nothing in this article shall be construed to limit a person or 50 entity that is a party to any civil or criminal action or proceeding 51 from gaining access to records pursuant to this article relating to such 52 action or proceeding, provided, however, that nothing in this subdivi- 53 sion shall prevent the denial of access to such records or portions 54 thereof after providing particularized and specific justification that 55 such records may be withheld pursuant to this article.S. 8486 15 1 § 5. Subdivisions (t) and (u) of section 105 of the civil practice law 2 and rules, subdivision (u) as relettered by chapter 100 of the laws of 3 1994, are relettered subdivisions (u) and (v) and a new subdivision (t) 4 is added to read as follows: 5 (t) "State legislature" means the New York state senate, New York 6 state assembly, any committee, subcommittee, joint committee, select 7 committee, or commission thereof, and any members, officers, represen- 8 tatives and employees thereof. 9 § 6. Subdivision (a) of section 7802 of the civil practice law and 10 rules is amended to read as follows: 11 (a) Definition of "body or officer". The expression "body or officer" 12 includes every court, tribunal, board, corporation, officer, state 13 legislature, or other person, or aggregation of persons, whose action 14 may be affected by a proceeding under this article. 15 § 7. Subdivision 3 of section 713 of the executive law, as amended by 16 section 16 of part B of chapter 56 of the laws of 2010, is amended to 17 read as follows: 18 3. Any reports prepared pursuant to this article shall not be subject 19 to disclosure pursuant to [section eighty-eight] article six of the 20 public officers law. 21 § 8. Section 70-0113 of the environmental conservation law is 22 REPEALED. 23 § 9. Subdivision 4 of section 308 of the county law is REPEALED. 24 § 10. This act shall take effect immediately; provided however that 25 the amendments to paragraphs (j), (k), (l), (m), (n), (o), (p), (q), 26 (r), (s) and (t) of subdivision 2 of section 87 of the public officers 27 law made by section two of this act shall not affect the repeal of such 28 paragraphs and shall be deemed repealed therewith.
