A00431 Summary:

BILL NOA00431
 
SAME ASSAME AS S05300
 
SPONSORKavanagh
 
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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A00431 Actions:

BILL NOA00431
 
01/07/2009referred to governmental operations
01/06/2010referred to governmental operations
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A00431 Floor Votes:

There are no votes for this bill in this legislative session.
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A00431 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           431
 
                               2009-2010 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 7, 2009
                                       ___________
 
        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    §  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    §  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  added  by  chapter
    18  368 of the laws of 2001, 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 legislature may

    22  deny access to records or portions thereof that:
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00995-01-9

        A. 431                              2
 
     1    (i) if disclosed, would jeopardize [an agency's] such entity's capaci-
     2  ty to guarantee the security of its information technology assets,  such
     3  assets  encompassing both electronic information systems and infrastruc-
     4  tures; or
     5    §  4. Paragraph (d) of subdivision 2 of section 87 of the public offi-
     6  cers law, as amended by chapter 289 of the laws of 1990, is  amended  to
     7  read as follows:
     8    (d)  are  trade  secrets  or  are  submitted to an agency or the state

     9  legislature by a  commercial  enterprise  or  derived  from  information
    10  obtained from a commercial enterprise and which if disclosed would cause
    11  substantial  injury  to  the  competitive position of the subject enter-
    12  prise;
    13    § 5. Subdivision 3 of section 87 of the public officers law, as  added
    14  by  chapter 933 of the laws of 1977, paragraph (c) as amended by chapter
    15  499 of the laws of 2008, is amended to read as follows:
    16    3. Each agency or house of the legislature shall maintain:
    17    (a) a record of the final vote of each member in every agency or house
    18  proceeding in which the member votes;
    19    (b) a record setting forth the name, public office address, title  and
    20  salary of every officer or employee of the agency or house of the legis-
    21  lature; and

    22    (c)  a  reasonably  detailed  current  list  by  subject matter of all
    23  records in the possession of the agency or  house  of  the  legislature,
    24  whether  or  not  available under this article. Each agency shall update
    25  its subject matter list annually, and the date of the most recent update
    26  shall be conspicuously indicated on  the  list.  Each  state  agency  as
    27  defined  in  subdivision  four  of this section that maintains a website
    28  shall post its current list on its website and  such  posting  shall  be
    29  linked  to  the  website  of  the committee on open government. Any such
    30  agency that does not maintain a website shall arrange to have  its  list
    31  posted on the website of the committee on open government.
    32    §  6. Subdivision 4 of section 87 of the public officers law, as added
    33  by chapter 890 of the laws of 1981, paragraph (c) as  added  by  chapter

    34  102 of the laws of 2007, is amended to read as follows:
    35    4.  (a)  Each  state  agency  [which] or house of the legislature that
    36  maintains records containing trade  secrets,  to  which  access  may  be
    37  denied  pursuant  to  paragraph  (d) of subdivision two of this section,
    38  shall promulgate regulations or rules in conformity with the  provisions
    39  of subdivision five of section eighty-nine of this article pertaining to
    40  such records, including, but not limited to the following:
    41    (1) the manner of identifying the records or parts;
    42    (2)  the  manner  of identifying persons within the agency or house of
    43  the legislature to whose custody the records or parts  will  be  charged
    44  and for whose inspection and study the records will be made available;
    45    (3)  the manner of safeguarding against any unauthorized access to the

    46  records.
    47    (b) As used in this subdivision the term "agency"  or  "state  agency"
    48  means  [only] either house of the state legislature, a state department,
    49  board, bureau, division, council or office and  any  public  corporation
    50  the majority of whose members are appointed by the governor.
    51    (c)  Each state agency that maintains a website shall post information
    52  related to this article  and  article  six-A  of  this  chapter  on  its
    53  website.  Such information shall include, at a minimum, contact informa-
    54  tion for the persons from whom records of the agency  may  be  obtained,
    55  the times and places such records are available for inspection and copy-
    56  ing,  and information on how to request records in person, by mail, and,

        A. 431                              3
 

     1  if the agency accepts requests for records  electronically,  by  e-mail.
     2  This  posting  shall  be  linked to the website of the committee on open
     3  government.
     4    § 7. Section 88 of the public officers law is REPEALED.
     5    §  8. Paragraph (b) of subdivision 1 of section 89 of the public offi-
     6  cers law, as amended by chapter 182 of the laws of 2006, is  amended  to
     7  read as follows:
     8    (b) The committee shall:
     9    i.  furnish  to any agency or house of the legislature advisory guide-
    10  lines, opinions or other appropriate information regarding this article;
    11    ii. furnish to any  person  advisory  opinions  or  other  appropriate
    12  information regarding this article;
    13    iii.  promulgate rules and regulations with respect to the implementa-
    14  tion of subdivision one  and  paragraph  (c)  of  subdivision  three  of
    15  section eighty-seven of this article;

    16    iv.  request  from any agency or house of the legislature such assist-
    17  ance, services and information as will enable the  committee  to  effec-
    18  tively carry out its powers and duties;
    19    v. develop a form, which shall be made available on the internet, that
    20  may be used by the public to request a record; and
    21    vi.  report  on its activities and findings regarding this article and
    22  article seven of this chapter, including recommendations for changes  in
    23  the  law,  to  the  governor  and the legislature annually, on or before
    24  December fifteenth.
    25    § 9. Paragraph (a) of subdivision 2 of section 89 of the public  offi-
    26  cers  law,  as  added  by chapter 933 of the laws of 1977, is amended to
    27  read as follows:
    28    (a) The committee on public access to records  may  promulgate  guide-
    29  lines  regarding  deletion  of  identifying  details  or  withholding of

    30  records otherwise available under this article  to  prevent  unwarranted
    31  invasions  of  personal  privacy.  In the absence of such guidelines, an
    32  agency or each house of the legislature may delete  identifying  details
    33  when it makes records available.
    34    §  10.  Subparagraphs  iv  and  v of paragraph (b) of subdivision 2 of
    35  section 89 of the public officers law, subparagraph iv as added by chap-
    36  ter 933 of the laws of 1977 and subparagraph v as amended by chapter 545
    37  of the laws of 1998, are amended to read as follows:
    38    iv. disclosure of information of a  personal  nature  when  disclosure
    39  would  result  in economic or personal hardship to the subject party and
    40  such information is not relevant to the work of the agency  [requesting]
    41  or house of the legislature maintaining it; or

    42    v.  disclosure  of information of a personal nature reported in confi-
    43  dence to an agency or house of the legislature and not relevant  to  the
    44  ordinary work of such agency or house; or
    45    §  11.  Subdivisions  3,  4 and 5 of section 89 of the public officers
    46  law, subdivision 3 as amended by chapter 223 of the laws of 2008, subdi-
    47  vision 4 as amended by chapter 22 of the laws of 2005, paragraph (c)  of
    48  subdivision 4 as amended by chapter 492 of the laws of 2006, subdivision
    49  5 as added by chapter 890 of the laws of 1981, paragraph (a) of subdivi-
    50  sion  5  as amended by chapter 403 of the laws of 2003 and paragraph (d)
    51  of subdivision 5 as amended by chapter 339 of  the  laws  of  2004,  are
    52  amended to read as follows:
    53    3.  (a)  Each entity subject to the provisions of this article, within

    54  five business days of the receipt of a  written  request  for  a  record
    55  reasonably  described,  shall  make  such record available to the person
    56  requesting it, deny  such  request  in  writing  or  furnish  a  written

        A. 431                              4
 
     1  acknowledgement  of  the  receipt of such request and a statement of the
     2  approximate date, which shall be reasonable under the  circumstances  of
     3  the  request,  when  such  request will be granted or denied, including,
     4  where  appropriate, a statement that access to the record will be deter-
     5  mined in accordance with subdivision five of this section.  An  [agency]
     6  entity shall not deny a request on the basis that the request is volumi-
     7  nous  or  that  locating or reviewing the requested records or providing

     8  the requested copies is burdensome because  the  [agency]  entity  lacks
     9  sufficient  staffing  or  on  any other basis if the [agency] entity may
    10  engage an outside professional service to provide  copying,  programming
    11  or  other  services required to provide the copy, the costs of which the
    12  [agency] entity may recover pursuant to paragraph (c) of subdivision one
    13  of section eighty-seven of this article. An [agency] entity may  require
    14  a  person  requesting  lists of names and addresses to provide a written
    15  certification that such person will not use  such  lists  of  names  and
    16  addresses  for  solicitation or fund-raising purposes and will not sell,
    17  give or otherwise make available such lists of names  and  addresses  to

    18  any  other  person  for  the purpose of allowing that person to use such
    19  lists of names and addresses for solicitation or fund-raising  purposes.
    20  If an [agency] entity determines to grant a request in whole or in part,
    21  and  if  circumstances  prevent  disclosure to the person requesting the
    22  record or records within twenty business  days  from  the  date  of  the
    23  acknowledgement of the receipt of the request, the [agency] entity shall
    24  state,  in  writing,  both  the  reason  for  the inability to grant the
    25  request within twenty business days and a date certain within a  reason-
    26  able  period,  depending  on the circumstances, when the request will be
    27  granted in whole or in part.  Upon payment of, or offer to pay, the  fee
    28  prescribed  therefor, the entity shall provide a copy of such record and

    29  certify to the correctness of such copy if so requested, or as the  case
    30  may be, shall certify that it does not have possession of such record or
    31  that  such record cannot be found after diligent search. Nothing in this
    32  article shall be construed to require any entity to prepare  any  record
    33  not  possessed or maintained by such entity except the records specified
    34  in subdivision three of section eighty-seven [and subdivision  three  of
    35  section  eighty-eight]  of this article. When an [agency] entity has the
    36  ability to retrieve or extract a record or data maintained in a computer
    37  storage system with reasonable effort, it shall be required  to  do  so.
    38  When  doing  so  requires  less  employee  time  than engaging in manual
    39  retrieval or redactions from non-electronic records, the [agency] entity

    40  shall be required to retrieve or extract such record or  data  electron-
    41  ically.  Any  programming necessary to retrieve a record maintained in a
    42  computer storage system and  to  transfer  that  record  to  the  medium
    43  requested  by  a person or to allow the transferred record to be read or
    44  printed shall not be deemed to be the preparation or creation of  a  new
    45  record.
    46    (b)  All  entities  shall,  provided  such entity has reasonable means
    47  available, accept requests for records submitted in the  form  of  elec-
    48  tronic mail and shall respond to such requests by electronic mail, using
    49  forms,  to  the  extent  practicable,  consistent with the form or forms
    50  developed by the committee on open government  pursuant  to  subdivision
    51  one of this section and provided that the written requests do not seek a
    52  response in some other form.

    53    4.  (a)  Except  as  provided in subdivision five of this section, any
    54  person denied access to a record may within thirty days appeal in  writ-
    55  ing  such  denial  to the head, chief executive or governing body of the
    56  entity, or the person therefor designated by such head, chief executive,

        A. 431                              5
 
     1  or governing body, who shall within ten business days of the receipt  of
     2  such appeal fully explain in writing to the person requesting the record
     3  the  reasons for further denial, or provide access to the record sought.
     4  In  addition,  each  [agency]  entity  shall  immediately forward to the
     5  committee on open government a copy of such appeal when received by [the
     6  agency] such entity and the ensuing determination thereon. Failure by an

     7  [agency] entity to conform to the provisions  of  subdivision  three  of
     8  this section shall constitute a denial.
     9    (b)  Except  as provided in subdivision five of this section, a person
    10  denied  access  to  a  record  in  an  appeal  determination  under  the
    11  provisions  of  paragraph (a) of this subdivision may bring a proceeding
    12  for review of such denial pursuant to article seventy-eight of the civil
    13  practice law and rules. In the event that access to any record is denied
    14  pursuant to the provisions of subdivision two of section eighty-seven of
    15  this article, the [agency] entity involved  shall  have  the  burden  of
    16  proving that such record falls within the provisions of such subdivision
    17  two. Failure by an [agency] entity to conform to the provisions of para-

    18  graph (a) of this subdivision shall constitute a denial.
    19    (c)  The  court in such a proceeding may assess, against such [agency]
    20  entity involved, reasonable attorney's fees and other  litigation  costs
    21  reasonably  incurred  by such person in any case under the provisions of
    22  this section in which such person has substantially prevailed, when:
    23    i. the [agency] entity had no reasonable basis for denying access; or
    24    ii. the [agency] entity failed to respond to a request or appeal with-
    25  in the statutory time.
    26    5. (a) (1) A person acting pursuant to law or regulation  who,  subse-
    27  quent to the effective date of this subdivision, submits any information
    28  to  any  state  agency  or  house of the legislature may, at the time of

    29  submission, request that the agency or house of the  legislature  except
    30  such  information from disclosure under paragraph (d) of subdivision two
    31  of section eighty-seven  of  this  article.  Where  the  request  itself
    32  contains  information  which  if  disclosed would defeat the purpose for
    33  which the exception is sought, such information shall also  be  excepted
    34  from disclosure.
    35    (1-a)  A person or entity who submits or otherwise makes available any
    36  records to any agency or house of the legislature,  may,  at  any  time,
    37  identify  those  records  or  portions thereof that may contain critical
    38  infrastructure information, and request that the agency or house of  the
    39  legislature  that  maintains  such  records except such information from
    40  disclosure under subdivision two of section eighty-seven of  this  arti-

    41  cle.  Where  the  request itself contains information which if disclosed
    42  would defeat the purpose for which the exception is sought, such  infor-
    43  mation shall also be excepted from disclosure.
    44    (2)  The  request  for  an exception shall be in writing and state the
    45  reasons why the information should be excepted from disclosure.
    46    (3) Information submitted as provided in subparagraphs one  and  one-a
    47  of  this  paragraph  shall be excepted from disclosure and be maintained
    48  apart by the [agency] entity from all other records until  fifteen  days
    49  after  the  entitlement to such exception has been finally determined or
    50  such further time as ordered by a court of competent jurisdiction.
    51    (b) On the initiative of the [agency] entity at any time, or upon  the
    52  request  of any person for a record excepted from disclosure pursuant to

    53  this subdivision, the agency shall:
    54    (1) inform the person who requested the exception  of  the  [agency's]
    55  entity's intention to determine whether such exception should be granted
    56  or continued;

        A. 431                              6
 
     1    (2) permit the person who requested the exception, within ten business
     2  days  of  receipt  of notification from the [agency] entity, to submit a
     3  written statement of the necessity for the granting or  continuation  of
     4  such exception;
     5    (3)  within  seven business days of receipt of such written statement,
     6  or within seven business days of the expiration of the period prescribed
     7  for submission of such statement, issue a written  determination  grant-
     8  ing,  continuing  or  terminating such exception and stating the reasons

     9  therefor; copies of such determination shall be served upon the  person,
    10  if  any,  requesting the record, the person who requested the exception,
    11  and the committee on public access to records.
    12    (c) A denial of an exception from disclosure under  paragraph  (b)  of
    13  this  subdivision  may be appealed by the person submitting the informa-
    14  tion and a denial of access to the record may be appealed by the  person
    15  requesting the record in accordance with this subdivision:
    16    (1)  Within  seven  business days of receipt of written notice denying
    17  the request, the person may file a written appeal from the determination
    18  of the [agency] entity with the head of the [agency] entity,  the  chief
    19  executive officer or governing body or their designated representatives.
    20    (2)  The  appeal  shall  be determined within ten business days of the

    21  receipt of the appeal. Written notice  of  the  determination  shall  be
    22  served  upon  the  person, if any, requesting the record, the person who
    23  requested the exception and the committee on public access  to  records.
    24  The  notice  shall  contain  a statement of the reasons for the determi-
    25  nation.
    26    (d) A proceeding to review an adverse determination pursuant to  para-
    27  graph  (c)  of  this  subdivision  may  be commenced pursuant to article
    28  seventy-eight of the civil practice law and rules. Such proceeding, when
    29  brought by a person seeking an exception  from  disclosure  pursuant  to
    30  this  subdivision,  must be commenced within fifteen days of the service
    31  of the written notice containing the adverse determination provided  for
    32  in subparagraph two of paragraph (c) of this subdivision.
    33    (e)  The  person  requesting  an exception from disclosure pursuant to

    34  this subdivision shall in all proceedings have  the  burden  of  proving
    35  entitlement to the exception.
    36    (f)  Where  the  [agency] entity denies access to a record pursuant to
    37  paragraph (d) of subdivision two of section eighty-seven of  this  arti-
    38  cle,  the  [agency]  entity  shall  have  the burden of proving that the
    39  record falls within the provisions of such exception.
    40    (g) Nothing in this subdivision shall be construed to deny any  person
    41  access,  pursuant  to  the  remaining provisions of this article, to any
    42  record or part excepted from disclosure upon the express written consent
    43  of the person who had requested the exception.
    44    (h) As used in this subdivision the term ["agency" or "state  agency"]
    45  entity  means  [only]  either  house  of  the state legislature, a state

    46  department, board, bureau, division, council or office  and  any  public
    47  corporation the majority of whose members are appointed by the governor.
    48    §  12. Section 70-0113 of the environmental conservation law, as added
    49  by chapter 723 of the laws of 1977, is amended to read as follows:
    50  § 70-0113. Confidentiality.
    51    The provisions of section [eighty-eight of article  six]  eighty-seven
    52  of  the  public  officers  law shall apply to information confidentially
    53  disclosed by applicants to the department, except as otherwise  provided
    54  in this chapter.
    55    §  13.  Subdivision 3 of section 713 of the executive law, as added by
    56  chapter 403 of the laws of 2003, such section as renumbered by section 2

        A. 431                              7
 
     1  of part B of chapter 1 of the laws  of  2004,  is  amended  to  read  as

     2  follows:
     3    3.  Any reports prepared pursuant to this article shall not be subject
     4  to disclosure pursuant to section  [eighty-eight]  eighty-seven  of  the
     5  public officers law.
     6    § 14. This act shall take effect immediately.
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