STATE OF NEW YORK
________________________________________________________________________
6637--A
2015-2016 Regular Sessions
IN ASSEMBLY
March 30, 2015
___________
Introduced by M. of A. ENGLEBRIGHT, BRONSON, TITONE -- read once and
referred to the Committee on Governmental Operations -- recommitted to
the Committee on Governmental Operations in accordance with Assembly
Rule 3, sec. 2 -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
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.
LBD08479-03-6
A. 6637--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 sixteen that amended this subdivi-
19 sion and as provided in subparagraphs one and one-a of this paragraph
20 shall be excepted from disclosure for a defined period of time and be
21 maintained apart by the agency from all other records until the expira-
22 tion of the submitter's exception request or fifteen days after the
23 entitlement to such exception has been finally determined or such
24 further time as 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. 6637--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.
