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A05601 Summary:

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A05601 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5601--A
                                                                 Cal. No. 94
 
                               2011-2012 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 23, 2011
                                       ___________
 
        Introduced  by M. of A. DESTITO -- read once and referred to the Commit-
          tee on Governmental Operations -- reported from committee, advanced to
          a third reading, amended and ordered reprinted, retaining its place on
          the order of third reading
 

        AN ACT to amend the public officers law, in relation to requiring  enti-
          ties  that  submit  records  to  state agencies that are excepted from
          disclosure under the freedom of information law to periodically re-ap-
          ply for the exception
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1. Subdivision 5 of section 89 of the public officers law, as
     2  added by chapter 890 of the laws of 1981, paragraph (a)  as  amended  by
     3  chapter 403 of the laws of 2003, paragraph (d) as amended by chapter 339
     4  of the laws of 2004, is amended to read as follows:
     5    5.  (a)  (1) A person acting pursuant to law or regulation who, subse-
     6  quent to the effective date of this subdivision, submits any information
     7  to any state agency may, at the time of  submission,  request  that  the

     8  agency  except  such  information from disclosure under paragraph (d) of
     9  subdivision two of section  eighty-seven  of  this  article.  Where  the
    10  request  itself contains information which if disclosed would defeat the
    11  purpose for which the exception is sought, such information  shall  also
    12  be excepted from disclosure.
    13    (1-a)  A person or entity who submits or otherwise makes available any
    14  records to any agency, may, at  any  time,  identify  those  records  or
    15  portions  thereof  that may contain critical infrastructure information,
    16  and request that the agency that  maintains  such  records  except  such
    17  information from disclosure under subdivision two of section eighty-sev-
    18  en  of this article. Where the request itself contains information which
    19  if disclosed would defeat the purpose for which the exception is sought,
    20  such information shall also be excepted from disclosure.
 

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09798-04-1
        A. 5601--A                          2
 
     1    (2) (i) The request for  an  exception  shall  be  in  writing,  shall
     2  specifically  identify  which  portions of the record are the subject of
     3  the request for exception and state  the  reasons  why  the  information
     4  should  be excepted, for a defined period of time, from disclosure.  The
     5  submitter  may also provide a date by which such exception shall expire,
     6  provided that such date shall not exceed three years from  the  time  of

     7  the agency's receipt of the request for an exception.
     8    (ii)  Not  less  than  sixty  days prior to the expiration of the then
     9  current term of the exception request, the submitter may  apply  to  the
    10  agency  for a three-year extension of its exception request. Upon timely
    11  receipt of a request for an extension of an exception request, an agency
    12  shall review the application and either  grant  or  deny  the  extension
    13  request. A denial of an extension request may be appealed by the submit-
    14  ter  pursuant  to  paragraph  (c)  of this subdivision. If the submitter
    15  fails to apply for an extension, the exception shall  be  considered  to
    16  have expired.
    17    (3)  Information  submitted  subsequent  to  the effective date of the

    18  chapter of the laws of two thousand eleven amending this subdivision and
    19  as provided in subparagraphs one and one-a of this  paragraph  shall  be
    20  excepted  from disclosure for a defined period of time and be maintained
    21  apart by the agency from all other records until the expiration  of  the
    22  submitter's  exception  request or fifteen days after the entitlement to
    23  such exception has been finally  determined  or  such  further  time  as
    24  ordered by a court of competent jurisdiction.
    25    (b)  [On]  During  the  effective period of an exception request under
    26  this subdivision, on the initiative of the agency at any time,  or  upon
    27  the request of any person for a record excepted from disclosure pursuant
    28  to this subdivision, the agency shall:

    29    (1)  inform  the  person  who  requested the exception of the agency's
    30  intention to determine whether  such  exception  should  be  granted  or
    31  continued;
    32    (2) permit the person who requested the exception, within ten business
    33  days  of  receipt  of  notification from the agency, to submit a written
    34  statement of the necessity for the  granting  or  continuation  of  such
    35  exception;
    36    (3)  within  seven business days of receipt of such written statement,
    37  or within seven business days of the expiration of the period prescribed
    38  for submission of such statement, issue a written  determination  grant-
    39  ing,  continuing  or  terminating such exception and stating the reasons
    40  therefor; copies of such determination shall be served upon the  person,
    41  if  any,  requesting the record, the person who requested the exception,

    42  and the committee on [public access to records] open government.
    43    (c) A denial of an exception from disclosure under  paragraph  (b)  of
    44  this  subdivision  may be appealed by the person submitting the informa-
    45  tion and a denial of access to the record may be appealed by the  person
    46  requesting the record in accordance with this subdivision:
    47    (1)  Within  seven  business days of receipt of written notice denying
    48  the request, the person may file a written appeal from the determination
    49  of the agency with the head of the agency, the chief  executive  officer
    50  or governing body or their designated representatives.
    51    (2)  The  appeal  shall  be determined within ten business days of the
    52  receipt of the appeal. Written notice  of  the  determination  shall  be
    53  served  upon  the  person, if any, requesting the record, the person who

    54  requested the exception and the committee on [public access to  records]
    55  open  government.    The notice shall contain a statement of the reasons
    56  for the determination.
        A. 5601--A                          3
 
     1    (d) A proceeding to review an adverse determination pursuant to  para-
     2  graph  (c)  of  this  subdivision  may  be commenced pursuant to article
     3  seventy-eight of the civil practice law and rules. Such proceeding, when
     4  brought by a person seeking an exception  from  disclosure  pursuant  to
     5  this  subdivision,  must be commenced within fifteen days of the service
     6  of the written notice containing the adverse determination provided  for
     7  in subparagraph two of paragraph (c) of this subdivision.
     8    (e)  The  person  requesting  an exception from disclosure pursuant to

     9  this subdivision shall in all proceedings have  the  burden  of  proving
    10  entitlement to the exception.
    11    (f)  Where  the agency denies access to a record pursuant to paragraph
    12  [(d) of] (b) of this subdivision in conjunction with subdivision two  of
    13  section  eighty-seven  of this article, the agency shall have the burden
    14  of proving that the record falls within the provisions  of  such  excep-
    15  tion.
    16    (g)  Nothing in this subdivision shall be construed to deny any person
    17  access, pursuant to the remaining provisions of  this  article,  to  any
    18  record or part excepted from disclosure upon the express written consent
    19  of the person who had requested the exception.
    20    (h)  As  used  in this subdivision the term "agency" or "state agency"
    21  means only a state  department,  board,  bureau,  division,  council  or

    22  office  and  any  public  corporation  the majority of whose members are
    23  appointed by the governor.
    24    § 2. This act shall take effect immediately.