NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A524
SPONSOR: Steck TITLE OF BILL:
An act to amend the public officers law, in relation to the hearing of
FOIL appeals by the committee on open government
PURPOSE OR GENERAL IDEA OF BILL:
To ensure that all appeals of the Freedom of Information Act are not
reviewed by the same agency that denied the appeal.
SUMMARY OF PROVISIONS:
Section 1. Subdivision 4 of section 89 of the public officers law, as 2
amended by chapter 22 of the laws of 2005, paragraph (c) as amended by 3
chapter 453 of the laws of 2017 and paragraph (d) as added by chapter 4
487 of the laws of 2016, is amended to read as follows:
(a) agency is replaced with committee on open government.
(b) agency is replaced with committee on open government.
(c) agency is replaced with committee on open government.
(d) agency is replaced with committee on open government.
(ii) agency is replaced with committee on open government.
(C) agency is replaced with committee on open government.
Section 2(1) Adds under paragraph (d) of subdivision two of section
eighty-seven of this article. Where the request itself contains informa-
tion which if disclosed would defeat the purpose for which the exception
is sought, such information shall also be excepted from disclosure.
Section 3(1) removes agency with the head of the agency, the chief exec-
utive officer 22 or governing body or their designated representatives
and is replaced with committee on open government.
Section 4: Effective Date.
JUSTIFICATION:
Appeals of freedom of information law FOIL requests to state and local
governments are currently under the auspices of the very same agency
that denied the initial request.. The same agency cannot be the arbiter
of these matters. Constituents throughout our state complain that FOIL
requests are routinely denied; having to appeal to the same entity that
denied the request only ensures that the appeal will also be denied. The
next available step is the FOIL requester must appeal to the court
system which involves hiring a lawyer, an expensive proposition. Mean-
while, valuable time is lost.
Attorneys' fees may be recoverable, but that is a small consolation for
a two year or greater process and attorneys may require payment up front
because the outcome of litigation is uncertain. Many of these FOIL
requests are made by those simply seeking transparency in government,
whether they be New York State residents asking for budget information,
members of our free press, or those simply seeking to ensure our agen-
cies and the executive branch are upholding their obligations.
Therefore, this legislation seeks to change the arbiter of these appeals
to an independent agency to ensure the process is one that is trusted,
fair and transparent.
LEGISLATIVE HISTORY:
2021: A4683 referred to
FISCAL IMPLICATIONS:
Fiscal note required
EFFECTIVE DATE:
Immediately
STATE OF NEW YORK
________________________________________________________________________
524
2025-2026 Regular Sessions
IN ASSEMBLY(Prefiled)
January 8, 2025
___________
Introduced by M. of A. STECK -- read once and referred to the Committee
on Governmental Operations
AN ACT to amend the public officers law, in relation to the hearing of
FOIL appeals by the committee on open government
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 4 of section 89 of the public officers law, as
2 amended by chapter 22 of the laws of 2005, paragraph (c) as amended by
3 chapter 453 of the laws of 2017 and paragraph (d) as added by chapter
4 487 of the laws of 2016, is amended to read as follows:
5 4. (a) Except as provided in subdivision five of this section, any
6 person denied access to a record may within thirty days appeal in writ-
7 ing such denial to the [head, chief executive or governing body of the
8 entity, or the person therefor designated by such head, chief executive,
9 or governing body,] committee on open government who shall within ten
10 business days of the receipt of such appeal fully explain in writing to
11 the person requesting the record the reasons for further denial, or
12 provide access to the record sought. [In addition, each agency shall
13 immediately forward to the committee on open government a copy of such
14 appeal when received by the agency and the ensuing determination there-
15 on. Failure by an agency to conform to the provisions of subdivision
16 three of this section shall constitute a denial.]
17 (b) Except as provided in subdivision five of this section, a person
18 denied access to a record in an appeal determination under the
19 provisions of paragraph (a) of this subdivision may bring a proceeding
20 for review of such denial pursuant to article seventy-eight of the civil
21 practice law and rules. In the event that access to any record is denied
22 pursuant to the provisions of subdivision two of section eighty-seven of
23 this article, the [agency involved] committee on open government shall
24 have the burden of proving that such record falls within the provisions
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01094-01-5
A. 524 2
1 of such subdivision two. Failure by [an agency] the committee on open
2 government to conform to the provisions of paragraph (a) of this subdi-
3 vision shall constitute a denial.
4 (c) The court in such a proceeding: (i) may assess, against such agen-
5 cy involved, reasonable attorney's fees and other litigation costs
6 reasonably incurred by such person in any case under the provisions of
7 this section in which such person has substantially prevailed, and when
8 the agency failed to respond to a request or the committee on open
9 government failed to respond to an appeal within the statutory time; and
10 (ii) shall assess, against such agency involved, reasonable attorney's
11 fees and other litigation costs reasonably incurred by such person in
12 any case under the provisions of this section in which such person has
13 substantially prevailed and the court finds that the agency had no
14 reasonable basis for denying access.
15 (d) (i) Appeal to the appellate division of the supreme court must be
16 made in accordance with subdivision (a) of section fifty-five hundred
17 thirteen of the civil practice law and rules.
18 (ii) An appeal from [an agency] the committee on open government taken
19 from an order of the court requiring disclosure of any or all records
20 sought:
21 (A) shall be given preference;
22 (B) shall be brought on for argument on such terms and conditions as
23 the presiding justice may direct, upon application of any party to the
24 proceeding; and
25 (C) shall be deemed abandoned if the [agency] committee on open
26 government fails to serve and file a record and brief within sixty days
27 after the date of service upon the petitioner of the notice of appeal,
28 unless consent to further extension is given by all parties, or unless
29 further extension is granted by the court upon such terms as may be just
30 and upon good cause shown.
31 § 2. Subparagraph 1 of paragraph (a) of subdivision 5 of section 89 of
32 the public officers law, as amended by chapter 403 of the laws of 2003,
33 is amended to read as follows:
34 (1) A person acting pursuant to law or regulation who, subsequent to
35 the effective date of this subdivision, submits any information to any
36 state agency may, at the time of submission, request that the agency
37 except such information from disclosure under paragraph (d) of subdivi-
38 sion two of section eighty-seven of this article. Where the request
39 itself contains information which if disclosed would defeat the purpose
40 for which the exception is sought, such information shall also be
41 excepted from disclosure under paragraph (d) of subdivision two of
42 section eighty-seven of this article. Where the request itself contains
43 information which if disclosed would defeat the purpose for which the
44 exception is sought, such information shall also be excepted from
45 disclosure.
46 § 3. Subparagraph 1 of paragraph (c) of subdivision 5 of section 89 of
47 the public officers law, as added by chapter 890 of the laws of 1981, is
48 amended to read as follows:
49 (1) Within seven business days of receipt of written notice denying
50 the request, the person may file a written appeal from the determination
51 of the [agency with the head of the agency, the chief executive officer
52 or governing body or their designated representatives] committee on open
53 government.
54 § 4. This act shall take effect immediately.
