A02015 Summary:

BILL NO    A02015 

SAME AS    SAME AS S00176

SPONSOR    Kavanagh

COSPNSR    

MLTSPNSR   

Amd SS87 & 89, rpld S88, Pub Off L; amd S70-0113, En Con L; amd S713, Exec L

Provides that the state legislature be subject to the same freedom of
information laws as other state agencies.
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A02015 Actions:

BILL NO    A02015 

01/09/2013 referred to governmental operations
01/08/2014 referred to governmental operations
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A02015 Votes:

There are no votes for this bill in this legislative session.
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A02015 Memo:

BILL NUMBER:A2015

TITLE  OF  BILL:    An  act  to  amend  the  public  officers law, the
environmental conservation law and the executive law, in  relation  to
freedom  of  information  pertaining  to legislative documents; and to
repeal certain provisions of the public officers law relating thereto

PURPOSE: The bill would make the Legislature subject to the Freedom of
Information Law (FOIL) in the same  manner  that  state  agencies  are
subject to such law.

SUMMARY OF PROVISIONS:  Sections 1 through 7 of the bill amend various
subdivisions  of  public  officers  law  section  87  to add the State
Legislature to the  existing  FOIL  provisions  that  apply  to  state
agencies and other public entities.

Section  9  of  the bill repeals public officers law section 88, which
currently sets forth the public's ability to access state  legislative
records.

Sections  10 through 13 of the bill make conforming changes to various
provisions of public officers law section 89.

Section 14 of the bill makes  a  conforming  change  to  environmental
conservation law section 70-0113.

Section  15  of  the  bill  makes a conforming change to executive law
section 713.

Section 16 of the bill sets the effective date.

JUSTIFICATION:  New York State's FOIL statute, as it  applies  to  the
State  Legislature, is in need of reform. The FOIL provisions covering
state and local agencies other than the Legislature  (public  officers
law S87) provide that a requested document is presumed to be available
to  the  public,  unless  the  document  (or  information  within  the
document) fall into a  specific,  statutory  exclusion.  In  contrast,
public  officers  law  S88,  which  covers the State Legislature, sets
forth a list of specific legislative  documents  that  the  public  is
entitled to. If a record is not on this list, the public cannot obtain
it through FOIL.

Under current law (public officers law S88), the public is entitled to
receive  only  the following documents from the Legislature: (a) bills
and amendments, fiscal notes, introducers' bill memoranda, resolutions
and amendments thereto, and index records; (b) messages received  from
the  Governor  or  the  other  house of the Legislature, and home rule
messages; (c) legislative notification of  the  proposed  adoption  of
rules  by  an  agency;  (d)  transcripts  or minutes, if prepared, and
journal records of public sessions including  meetings  of  committees
and  subcommittees and public hearings, with the records of attendance
of members thereat and records of any votes  taken;  (e)  internal  or
external  audits  and  statistical  or  factual tabulations of or with
respect to, material otherwise available  for  public  inspection  and
copying  pursuant to this section or any other applicable provision of
law; (f) administrative staff manuals and instructions to  staff  that
affect  members  of  the public; (g) final reports and formal opinions


submitted to the Legislature; (h) final reports or recommendations and
minority or dissenting reports and opinions of members of  committees,
subcommittees, or commissions of the legislature; (i) any other files,
records, paper s or documents required by law to be made available for
public  inspection and copying; (j) external audits conducted pursuant
to Legislative Law S92 and schedules issued  pursuant  to  Legislative
Law S92(2).

This  bill  would  bring the Legislature into public officers law S87,
with its presumption that documents should be available to the public.
Legislative information of all types, not merely the items  enumerated
above,  would be presumed to be available. This is an important reform
that would enable the public to  better  understand--and  become  more
involved  in-the  legislative  process, and to better hold their state
legislators accountable.

LEGISLATIVE HISTORY:

2012: A09069 (Kavanagh) - Governmental Operations
2010: A00431 (Kavanagh) - Governmental Operations
2009: A00431 (Kavanagh) - Governmental Operations
2008: A10157 (Kavanagh) - Governmental Operations

FISCAL IMPACT ON THE STATE: None.

EFFECTIVE DATE: This act shall take effect immediately.
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A02015 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                         2015

                              2013-2014 Regular Sessions

                                 I N  A S S E M B L Y

                                      (PREFILED)

                                    January 9, 2013
                                      ___________

       Introduced by M. of A. KAVANAGH -- read once and referred to the Commit-
         tee on Governmental Operations

       AN  ACT to amend the public officers law, the environmental conservation
         law and the executive law,  in  relation  to  freedom  of  information
         pertaining  to legislative documents; and to repeal certain provisions
         of the public officers law relating thereto

         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section  1.  The  section heading of section 87 of the public officers
    2  law, as added by chapter 933 of the laws of 1977, is amended to read  as
    3  follows:
    4    Access to agency AND STATE LEGISLATIVE records.
    5    S  2.  The  opening  paragraph  of  paragraph  (b) of subdivision 1 of
    6  section 87 of the public officers law, as amended by chapter 80  of  the
    7  laws of 1983, is amended to read as follows:
    8    Each  agency AND HOUSE OF THE STATE LEGISLATURE shall promulgate rules
    9  and regulations, in conformity with this article  and  applicable  rules
   10  and  regulations promulgated pursuant to the provisions of paragraph (a)
   11  of this subdivision, and pursuant to such general rules and  regulations
   12  as  may be promulgated by the committee on open government in conformity
   13  with the provisions of this article, pertaining to the  availability  of
   14  records and procedures to be followed, including, but not limited to:
   15    S  3.  The  opening  paragraph  and  paragraph (i) of subdivision 2 of
   16  section 87 of the public officers law, the opening paragraph as added by
   17  chapter 933 of the laws of 1977 and paragraph (i) as amended by  chapter
   18  154 of the laws of 2010, are amended to read as follows:
   19    Each  agency  AND  HOUSE OF THE STATE LEGISLATURE shall, in accordance
   20  with its published rules, make available for public inspection and copy-
   21  ing all records, except that such agency OR HOUSE OF THE STATE  LEGISLA-
   22  TURE may deny access to records or portions thereof that:

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD02813-01-3
       A. 2015                             2

    1    (i)  if disclosed, would jeopardize the capacity of an agency OR HOUSE
    2  OF THE STATE LEGISLATURE or an entity that has shared  information  with
    3  an agency OR HOUSE OF THE STATE LEGISLATURE to guarantee the security of
    4  its  information  technology assets, such assets encompassing both elec-
    5  tronic information systems and infrastructures; or
    6    S  4. Paragraph (d) of subdivision 2 of section 87 of the public offi-
    7  cers law, as amended by chapter 289 of the laws of 1990, is  amended  to
    8  read as follows:
    9    (d)  are  trade  secrets  or  are  submitted to an agency OR THE STATE
   10  LEGISLATURE by a  commercial  enterprise  or  derived  from  information
   11  obtained from a commercial enterprise and which if disclosed would cause
   12  substantial  injury  to  the  competitive position of the subject enter-
   13  prise;
   14    S 5. Subdivision 3 of section 87 of the public officers law, as  added
   15  by  chapter 933 of the laws of 1977, paragraph (c) as amended by chapter
   16  499 of the laws of 2008, is amended to read as follows:
   17    3. Each agency OR HOUSE OF THE STATE LEGISLATURE shall maintain:
   18    (a) a record of the final vote of each member in every agency OR HOUSE
   19  proceeding in which the member votes;
   20    (b) a record setting forth the name, public office address, title  and
   21  salary  of every officer or employee of the agency OR HOUSE OF THE STATE
   22  LEGISLATURE; and
   23    (c) a reasonably detailed  current  list  by  subject  matter  of  all
   24  records  in  the possession of the agency OR HOUSE OF THE STATE LEGISLA-
   25  TURE, whether or not available under this  article.  Each  agency  shall
   26  update its subject matter list annually, and the date of the most recent
   27  update  shall  be conspicuously indicated on the list. Each state agency
   28  as defined in subdivision four of this section that maintains a  website
   29  shall  post  its  current  list on its website and such posting shall be
   30  linked to the website of the committee  on  open  government.  Any  such
   31  agency  that  does not maintain a website shall arrange to have its list
   32  posted on the website of the committee on open government.
   33    S 6. Subdivision 4 of section 87 of the public officers law, as  added
   34  by  chapter  890  of the laws of 1981, paragraph (c) as added by chapter
   35  102 of the laws of 2007, is amended to read as follows:
   36    4. (a) Each state agency [which] OR HOUSE  OF  THE  STATE  LEGISLATURE
   37  THAT  maintains records containing trade secrets, to which access may be
   38  denied pursuant to paragraph (d) of subdivision  two  of  this  section,
   39  shall  promulgate regulations OR RULES in conformity with the provisions
   40  of subdivision five of section eighty-nine of this article pertaining to
   41  such records, including, but not limited to the following:
   42    (1) the manner of identifying the records or parts;
   43    (2) the manner of identifying persons within the agency  OR  HOUSE  OF
   44  THE  STATE  LEGISLATURE  to  whose  custody the records or parts will be
   45  charged and for whose inspection and study  the  records  will  be  made
   46  available;
   47    (3)  the manner of safeguarding against any unauthorized access to the
   48  records.
   49    (b) As used in this subdivision the term "agency"  or  "state  agency"
   50  means  [only] EITHER HOUSE OF THE STATE LEGISLATURE, a state department,
   51  board, bureau, division, council or office and  any  public  corporation
   52  the majority of whose members are appointed by the governor.
   53    (c)  Each state agency that maintains a website shall post information
   54  related to this article  and  article  six-A  of  this  chapter  on  its
   55  website.  Such information shall include, at a minimum, contact informa-
   56  tion for the persons from whom records of the agency  may  be  obtained,
       A. 2015                             3

    1  the times and places such records are available for inspection and copy-
    2  ing,  and information on how to request records in person, by mail, and,
    3  if the agency accepts requests for records  electronically,  by  e-mail.
    4  This  posting  shall  be  linked to the website of the committee on open
    5  government.
    6    S 7. Section 88 of the public officers law is REPEALED.
    7    S 8. Paragraph (b) of subdivision 1 of section 89 of the public  offi-
    8  cers  law,  as amended by chapter 182 of the laws of 2006, is amended to
    9  read as follows:
   10    (b) The committee shall:
   11    i. furnish to any agency OR HOUSE OF THE  STATE  LEGISLATURE  advisory
   12  guidelines,  opinions  or  other  appropriate information regarding this
   13  article;
   14    ii. furnish to any  person  advisory  opinions  or  other  appropriate
   15  information regarding this article;
   16    iii.  promulgate rules and regulations with respect to the implementa-
   17  tion of subdivision one  and  paragraph  (c)  of  subdivision  three  of
   18  section eighty-seven of this article;
   19    iv.  request  from  any  agency OR HOUSE OF THE STATE LEGISLATURE such
   20  assistance, services and information as will  enable  the  committee  to
   21  effectively carry out its powers and duties;
   22    v. develop a form, which shall be made available on the internet, that
   23  may be used by the public to request a record; and
   24    vi.  report  on its activities and findings regarding this article and
   25  article seven of this chapter, including recommendations for changes  in
   26  the  law,  to  the  governor  and the legislature annually, on or before
   27  December fifteenth.
   28    S 9. Paragraph (a) of subdivision 2 of section 89 of the public  offi-
   29  cers  law,  as amended by section 11 of part U of chapter 61 of the laws
   30  of 2011, is amended to read as follows:
   31    (a) The committee on public access to records  may  promulgate  guide-
   32  lines  regarding  deletion  of  identifying  details  or  withholding of
   33  records otherwise available under this article  to  prevent  unwarranted
   34  invasions  of  personal  privacy.  In the absence of such guidelines, an
   35  agency OR EACH HOUSE OF THE STATE  LEGISLATURE  may  delete  identifying
   36  details when it makes records available.
   37    S  10.  Subparagraphs  iv  and  v of paragraph (b) of subdivision 2 of
   38  section 89 of the public officers law, as amended by section 11 of  part
   39  U of chapter 61 of the laws of 2011, are amended to read as follows:
   40    iv.  disclosure  of  information  of a personal nature when disclosure
   41  would result in economic or personal hardship to the subject  party  and
   42  such  information is not relevant to the work of the agency [requesting]
   43  or HOUSE OF THE STATE LEGISLATURE maintaining it;
   44    v. disclosure of information of a personal nature reported  in  confi-
   45  dence  to an agency and not relevant to the ordinary work of such agency
   46  OR HOUSE OF THE STATE LEGISLATURE;
   47    S 11. Subdivisions 3, 4 and 5 of section 89  of  the  public  officers
   48  law, subdivision 3 as amended by chapter 223 of the laws of 2008, subdi-
   49  vision  4 as amended by chapter 22 of the laws of 2005, paragraph (c) of
   50  subdivision 4 as amended by chapter 492 of the laws of 2006, subdivision
   51  5 as added by chapter 890 of the laws of 1981, paragraph (a) of subdivi-
   52  sion 5 as amended by chapter 403 of the laws of 2003 and  paragraph  (d)
   53  of  subdivision  5  as  amended  by chapter 339 of the laws of 2004, are
   54  amended to read as follows:
   55    3. (a) Each entity subject to the provisions of this  article,  within
   56  five  business  days  of  the  receipt of a written request for a record
       A. 2015                             4

    1  reasonably described, shall make such record  available  to  the  person
    2  requesting  it,  deny  such  request  in  writing  or  furnish a written
    3  acknowledgement of the receipt of such request and a  statement  of  the
    4  approximate  date,  which shall be reasonable under the circumstances of
    5  the request, when such request will be  granted  or  denied,  including,
    6  where  appropriate, a statement that access to the record will be deter-
    7  mined in accordance with subdivision five of this section.  An  [agency]
    8  ENTITY shall not deny a request on the basis that the request is volumi-
    9  nous  or  that  locating or reviewing the requested records or providing
   10  the requested copies is burdensome because  the  [agency]  ENTITY  lacks
   11  sufficient  staffing  or  on  any other basis if the [agency] ENTITY may
   12  engage an outside professional service to provide  copying,  programming
   13  or  other  services required to provide the copy, the costs of which the
   14  [agency] ENTITY may recover pursuant to paragraph (c) of subdivision one
   15  of section eighty-seven of this article. An [agency] ENTITY may  require
   16  a  person  requesting  lists of names and addresses to provide a written
   17  certification that such person will not use  such  lists  of  names  and
   18  addresses  for  solicitation or fund-raising purposes and will not sell,
   19  give or otherwise make available such lists of names  and  addresses  to
   20  any  other  person  for  the purpose of allowing that person to use such
   21  lists of names and addresses for solicitation or fund-raising  purposes.
   22  If an [agency] ENTITY determines to grant a request in whole or in part,
   23  and  if  circumstances  prevent  disclosure to the person requesting the
   24  record or records within twenty business  days  from  the  date  of  the
   25  acknowledgement of the receipt of the request, the [agency] ENTITY shall
   26  state,  in  writing,  both  the  reason  for  the inability to grant the
   27  request within twenty business days and a date certain within a  reason-
   28  able  period,  depending  on the circumstances, when the request will be
   29  granted in whole or in part.  Upon payment of, or offer to pay, the  fee
   30  prescribed  therefor, the entity shall provide a copy of such record and
   31  certify to the correctness of such copy if so requested, or as the  case
   32  may be, shall certify that it does not have possession of such record or
   33  that  such record cannot be found after diligent search. Nothing in this
   34  article shall be construed to require any entity to prepare  any  record
   35  not  possessed or maintained by such entity except the records specified
   36  in subdivision three of section eighty-seven [and subdivision  three  of
   37  section  eighty-eight]  of this article. When an [agency] ENTITY has the
   38  ability to retrieve or extract a record or data maintained in a computer
   39  storage system with reasonable effort, it shall be required  to  do  so.
   40  When  doing  so  requires  less  employee  time  than engaging in manual
   41  retrieval or redactions from non-electronic records, the [agency] ENTITY
   42  shall be required to retrieve or extract such record or  data  electron-
   43  ically.  Any  programming necessary to retrieve a record maintained in a
   44  computer storage system and  to  transfer  that  record  to  the  medium
   45  requested  by  a person or to allow the transferred record to be read or
   46  printed shall not be deemed to be the preparation or creation of  a  new
   47  record.
   48    (b)  All  entities  shall,  provided  such entity has reasonable means
   49  available, accept requests for records submitted in the  form  of  elec-
   50  tronic mail and shall respond to such requests by electronic mail, using
   51  forms,  to  the  extent  practicable,  consistent with the form or forms
   52  developed by the committee on open government  pursuant  to  subdivision
   53  one of this section and provided that the written requests do not seek a
   54  response in some other form.
   55    4.  (a)  Except  as  provided in subdivision five of this section, any
   56  person denied access to a record may within thirty days appeal in  writ-
       A. 2015                             5

    1  ing  such  denial  to the head, chief executive or governing body of the
    2  entity, or the person therefor designated by such head, chief executive,
    3  or governing body, who shall within ten business days of the receipt  of
    4  such appeal fully explain in writing to the person requesting the record
    5  the  reasons for further denial, or provide access to the record sought.
    6  In addition, each [agency]  ENTITY  shall  immediately  forward  to  the
    7  committee on open government a copy of such appeal when received by [the
    8  agency] SUCH ENTITY and the ensuing determination thereon. Failure by an
    9  [agency]  ENTITY  to  conform  to the provisions of subdivision three of
   10  this section shall constitute a denial.
   11    (b) Except as provided in subdivision five of this section,  a  person
   12  denied  access  to  a  record  in  an  appeal  determination  under  the
   13  provisions of paragraph (a) of this subdivision may bring  a  proceeding
   14  for review of such denial pursuant to article seventy-eight of the civil
   15  practice law and rules. In the event that access to any record is denied
   16  pursuant to the provisions of subdivision two of section eighty-seven of
   17  this  article,  the  [agency]  ENTITY  involved shall have the burden of
   18  proving that such record falls within the provisions of such subdivision
   19  two. Failure by an [agency] ENTITY to conform to the provisions of para-
   20  graph (a) of this subdivision shall constitute a denial.
   21    (c) The court in such a proceeding may assess, against  such  [agency]
   22  ENTITY  involved,  reasonable attorney's fees and other litigation costs
   23  reasonably incurred by such person in any case under the  provisions  of
   24  this section in which such person has substantially prevailed, when:
   25    i. the [agency] ENTITY had no reasonable basis for denying access; or
   26    ii. the [agency] ENTITY failed to respond to a request or appeal with-
   27  in the statutory time.
   28    5.  (a)  (1) A person acting pursuant to law or regulation who, subse-
   29  quent to the effective date of this subdivision, submits any information
   30  to any state agency OR HOUSE OF THE STATE LEGISLATURE may, at  the  time
   31  of submission, request that the agency OR HOUSE OF THE STATE LEGISLATURE
   32  except  such information from disclosure under paragraph (d) of subdivi-
   33  sion two of section eighty-seven of  this  article.  Where  the  request
   34  itself  contains information which if disclosed would defeat the purpose
   35  for which the exception  is  sought,  such  information  shall  also  be
   36  excepted from disclosure.
   37    (1-a)  A person or entity who submits or otherwise makes available any
   38  records to any agency OR HOUSE OF THE STATE  LEGISLATURE,  may,  at  any
   39  time,  identify those records or portions thereof that may contain crit-
   40  ical infrastructure information, and request that the agency OR HOUSE OF
   41  THE STATE LEGISLATURE that maintains such records except  such  informa-
   42  tion  from  disclosure  under subdivision two of section eighty-seven of
   43  this article. Where the request itself  contains  information  which  if
   44  disclosed  would  defeat  the purpose for which the exception is sought,
   45  such information shall also be excepted from disclosure.
   46    (2) The request for an exception shall be in  writing  and  state  the
   47  reasons why the information should be excepted from disclosure.
   48    (3)  Information  submitted as provided in subparagraphs one and one-a
   49  of this paragraph shall be excepted from disclosure  and  be  maintained
   50  apart  by  the [agency] ENTITY from all other records until fifteen days
   51  after the entitlement to such exception has been finally  determined  or
   52  such further time as ordered by a court of competent jurisdiction.
   53    (b)  On the initiative of the [agency] ENTITY at any time, or upon the
   54  request of any person for a record excepted from disclosure pursuant  to
   55  this subdivision, the agency shall:
       A. 2015                             6

    1    (1)  inform  the  person who requested the exception of the [agency's]
    2  ENTITY'S intention to determine whether such exception should be granted
    3  or continued;
    4    (2) permit the person who requested the exception, within ten business
    5  days  of  receipt  of notification from the [agency] ENTITY, to submit a
    6  written statement of the necessity for the granting or  continuation  of
    7  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.
   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] ENTITY with the head of the [agency] ENTITY,  the  chief
   22  executive officer or governing body or their designated representatives.
   23    (2)  The  appeal  shall  be determined within ten business days of the
   24  receipt of the appeal. Written notice  of  the  determination  shall  be
   25  served  upon  the  person, if any, requesting the record, the person who
   26  requested the exception and the committee on public access  to  records.
   27  The  notice  shall  contain  a statement of the reasons for the determi-
   28  nation.
   29    (d) A proceeding to review an adverse determination pursuant to  para-
   30  graph  (c)  of  this  subdivision  may  be commenced pursuant to article
   31  seventy-eight of the civil practice law and rules. Such proceeding, when
   32  brought by a person seeking an exception  from  disclosure  pursuant  to
   33  this  subdivision,  must be commenced within fifteen days of the service
   34  of the written notice containing the adverse determination provided  for
   35  in subparagraph two of paragraph (c) of this subdivision.
   36    (e)  The  person  requesting  an exception from disclosure pursuant to
   37  this subdivision shall in all proceedings have  the  burden  of  proving
   38  entitlement to the exception.
   39    (f)  Where  the  [agency] ENTITY denies access to a record pursuant to
   40  paragraph (d) of subdivision two of section eighty-seven of  this  arti-
   41  cle,  the  [agency]  ENTITY  shall  have  the burden of proving that the
   42  record falls within the provisions of such exception.
   43    (g) Nothing in this subdivision shall be construed to deny any  person
   44  access,  pursuant  to  the  remaining provisions of this article, to any
   45  record or part excepted from disclosure upon the express written consent
   46  of the person who had requested the exception.
   47    (h) As used in this subdivision the term ["agency" or "state  agency"]
   48  "ENTITY"  means  [only]  EITHER  HOUSE OF THE STATE LEGISLATURE, a state
   49  department, board, bureau, division, council or office  and  any  public
   50  corporation the majority of whose members are appointed by the governor.
   51    S  12. Section 70-0113 of the environmental conservation law, as added
   52  by chapter 723 of the laws of 1977, is amended to read as follows:
   53  S 70-0113. Confidentiality.
   54    The provisions of section [eighty-eight of article  six]  EIGHTY-SEVEN
   55  of  the  public  officers  law shall apply to information confidentially
       A. 2015                             7

    1  disclosed by applicants to the department, except as otherwise  provided
    2  in this chapter.
    3    S 13. Subdivision 3 of section 713 of the executive law, as amended by
    4  section  16  of  part B of chapter 56 of the laws of 2010, is amended to
    5  read as follows:
    6    3. Any reports prepared pursuant to this article shall not be  subject
    7  to  disclosure  pursuant  to  section [eighty-eight] EIGHTY-SEVEN of the
    8  public officers law.
    9    S 14. This act shall take effect immediately.
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