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A07275 Summary:

BILL NOA07275
 
SAME ASSAME AS S01816
 
SPONSORZebrowski
 
COSPNSR
 
MLTSPNSR
 
Amd §§89, 107 & 87, Pub Off L
 
Enacts the integrity in government act; expands the powers and duties of the committee on open government.
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A07275 Actions:

BILL NOA07275
 
04/29/2021referred to governmental operations
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A07275 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A7275
 
SPONSOR: Zebrowski
  TITLE OF BILL: An act to amend the public officers law, in relation to enacting the integrity in government act   PURPOSE OR GENERAL IDEA OF BILL: To ensure greater adherence to the Freedom of Information Law (FOIL) and Open Meetings Law (OML) by creating enforcement powers for New York's Committee on Open Government (COOG).   SUMMARY OF PROVISIONS: Section one of the bill relates to the title "Integrity in Government Act." Section two of the bill amends section 89 of the public officers law as it relates to the maintaining of a permanent office and the employment of staff necessary to carry out the act. The Committee on Open Govern- ment (COOG) would establish a process to receive notices of appeal from an aggrieved party, investigation powers, and the ability to impose civil penalties for violations. Section three of the bill amends section 89 of the public officers law as it relates to clarifying a person denied access to record has the right to appeal to the committee. Section four of the bill amends section 107 of the public officers law as it relations to clarifying a person denied access to record has the right to appeal to the committee. Section five of the bill amends section 87 of the public officers law as it relates empower the COOG to promulgate rules related to this act. Section six of the bill relates to the effective date.   JUSTIFICATION: The large majority of public officials in state and local governments work hard to abide by open government laws. In those instances, where FOIL or OML is violated, however, current statute does not provide for any opportunity to compel compliance other than a costly Article 78 proceeding. New York's Committee on Open Government presently oversees the implementation of FOIL and OML but its actions are only advisory in nature. This bill will ensure greater adherence to FOIL and OML by providing enforcement powers to the Committee.   PRIOR LEGISLATIVE HISTORY: New Bill.   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: This act shall take effect on the first of April next succeeding the date on which it shall become law.
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A07275 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7275
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                     April 29, 2021
                                       ___________
 
        Introduced  by  M.  of  A.  ZEBROWSKI  --  read once and referred to the
          Committee on Governmental Operations
 
        AN ACT to amend the public officers law, in  relation  to  enacting  the
          integrity in government act
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. This act shall be known and may be cited as the  "integrity
     2  in government act".
     3    §  2. Paragraph (a) of subdivision 1 of section 89 of the public offi-
     4  cers law, as amended by chapter 33 of the laws of 1984, is  amended  and
     5  six  new paragraphs (c), (d), (e), (f), (g) and (h) are added to read as
     6  follows:
     7    (a) The committee on open government is continued and shall consist of
     8  the lieutenant governor or the delegate of such officer,  the  secretary
     9  of  state  or  the  delegate  of such officer, whose office shall act as
    10  secretariat for the committee, the commissioner of the office of general
    11  services or the delegate of such officer, the director of the budget  or
    12  the  delegate  of  such  officer,  and seven other persons, none of whom
    13  shall hold any other state or local public office except  the  represen-
    14  tative  of  local  governments  as  set forth herein, to be appointed as
    15  follows: five by the governor, at least two of whom  are  or  have  been
    16  representatives of the news media, one of whom shall be a representative
    17  of  local  government  who,  at the time of appointment, is serving as a
    18  duly elected officer of a local government, one by the temporary  presi-
    19  dent  of the senate, and one by the speaker of the assembly. The persons
    20  appointed by the temporary president of the senate and  the  speaker  of
    21  the  assembly shall be appointed to serve, respectively, until the expi-
    22  ration of the terms of office of the temporary president and the speaker
    23  to which the temporary president and  speaker  were  elected.  The  four
    24  persons presently serving by appointment of the governor for fixed terms
    25  shall  continue to serve until the expiration of their respective terms.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05628-01-1

        A. 7275                             2
 
     1  Thereafter, their respective successors shall be appointed for terms  of
     2  four  years. The member representing local government shall be appointed
     3  for a term of four years, so long as such member  shall  remain  a  duly
     4  elected  officer of a local government. The committee shall hold no less
     5  than two meetings annually, but may meet at any time. The members of the
     6  committee  shall  be  entitled  to  reimbursement  for  actual  expenses
     7  incurred  in  the  discharge of their duties.  The executive director of
     8  the committee shall maintain a permanent office in Albany in such  suit-
     9  able  space as the commissioner of the department of state provides. All
    10  papers required to be filed with or served upon the committee  shall  be
    11  delivered  to such office. Each member shall receive two hundred dollars
    12  per day for each day such member is present at a  committee  hearing  or
    13  meeting, and shall be entitled to reimbursement for actual and necessary
    14  expenses incurred in connection therewith.
    15    (c) The committee shall, subject to the civil service law, employ such
    16  employees  as  may  be  necessary  to  carry  out the provisions of this
    17  section. The committee may enter into such contractual agreements as may
    18  be necessary for the discharge of its duties, within the limits  of  its
    19  appropriated funds and in accordance with established procedures.
    20    (d)  i. Any person denied the right to inspect or copy records, denied
    21  the right to attend any meeting of a public agency or denied  any  other
    22  right  conferred  by  this article and article seven of this chapter may
    23  appeal therefrom to the committee by filing a notice of appeal with  the
    24  committee.  A notice of appeal shall be filed not later than thirty days
    25  after such denial, except in the case of an unnoticed or secret meeting,
    26  in which case the appeal shall be filed not later than thirty days after
    27  the person filing the appeal receives notice in fact that  such  meeting
    28  was held. For purposes of this paragraph, such notice of appeal shall be
    29  deemed  to  be  filed on the date it is received by said committee or on
    30  the date it is postmarked, if received more than thirty days  after  the
    31  date of the denial from which such appeal is taken.
    32    ii.  Upon  receipt  of such notice, the committee shall serve upon all
    33  parties, by certified or registered mail, a copy of such notice together
    34  with any other notice or order of such committee. In  the  case  of  the
    35  denial  of  a  request  to inspect or copy records contained in a public
    36  employee's personnel or medical file, the committee shall  include  with
    37  its  notice  or order an order requiring the public agency to notify any
    38  employee whose records are subject of  an  appeal,  and  the  employee's
    39  collective   bargaining  representative,  if  any,  of  the  committee's
    40  proceedings and, if any such employee or collective bargaining represen-
    41  tative has filed an objection, the agency  shall  provide  the  required
    42  notice  to  such  employee  and  collective bargaining representative by
    43  certified mail, return receipt requested or  by  hand  delivery  with  a
    44  signed receipt. A public employee whose personnel or medical file is the
    45  subject  of an appeal may intervene as a party in the proceedings on the
    46  matter before the committee.
    47    (e) i. The committee shall,  after  due  notice  to  the  parties  and
    48  subject  to  the  provisions  of  this article and article seven of this
    49  chapter, promptly review the alleged violation  of  said  articles.  The
    50  committee  shall have the power to investigate all alleged violations of
    51  this article and article seven of this chapter and may for  the  purpose
    52  of investigating any violation hold a hearing, administer oaths, examine
    53  witnesses,  receive  oral  and  documentary  evidence, have the power to
    54  subpoena witnesses under procedural rules adopted by  the  committee  to
    55  compel  attendance  and to require the production for examination of any
    56  books and papers which the committee deems relevant in any matter  under

        A. 7275                             3
 
     1  investigation  or  in  question. In case of a refusal to comply with any
     2  such subpoena or to testify with respect to any matter upon  which  that
     3  person  may be lawfully interrogated, a court of competent jurisdiction,
     4  on  application  of  the  committee,  may  issue an order requiring such
     5  person to comply with such subpoena and to testify; failure to obey  any
     6  such order of the court may be punished by the court as a contempt ther-
     7  eof.
     8    ii.  The committee shall hear and decide each appeal within six months
     9  after the filing of the notice of  appeal.  The  committee  shall  adopt
    10  regulations establishing criteria for those appeals which shall be priv-
    11  ileged in their assignment for hearing. Any such privileged appeal shall
    12  be  heard not later than thirty days after receipt of a notice of appeal
    13  and decided not later than sixty days after a hearing.
    14    iii. If a notice of appeal concerns an announced  agency  decision  to
    15  meet  in  executive  session or an ongoing agency practice of meeting in
    16  executive sessions, for a stated purpose, the committee or a  member  or
    17  members  of  the  committee  designated  by  its chairperson shall serve
    18  notice upon the parties and hold a preliminary hearing on the appeal not
    19  later than seventy-two hours after receipt of the notice, provided  such
    20  notice shall be given to the parties at least forty-eight hours prior to
    21  such  hearing. During such preliminary hearing, the committee shall take
    22  evidence and receive testimony from the parties. If after  the  prelimi-
    23  nary  hearing  the  committee  finds  probable cause to believe that the
    24  agency decision or practice is in violation of  article  seven  of  this
    25  chapter, the agency shall not meet in executive session for such purpose
    26  until  the  committee  decides the appeal. If probable cause is found by
    27  the committee, it shall conduct a final hearing on the appeal and render
    28  its decision not later than  five  days  after  the  completion  of  the
    29  preliminary  hearing.  Such decision shall specify the committee's find-
    30  ings of fact and conclusions of law.
    31    iv. The committee, at its discretion, may issue an order to discontin-
    32  ue all work resulting from an alleged  violation  of  this  article  and
    33  article  seven  of  this chapter if irreparable harm is deemed to poten-
    34  tially occur. This order will hold until a decision is rendered  by  the
    35  committee on the alleged violation.
    36    (f)  i.  In any appeal to the committee, the committee may confirm the
    37  action of the agency or order the agency  to  provide  relief  that  the
    38  committee, in its discretion, believes appropriate to rectify the denial
    39  of  any  right conferred by this article and article seven of this chap-
    40  ter.  The committee may declare null and void any action  taken  at  any
    41  meeting  which  a  person was denied the right to attend and may require
    42  the production or copying of any public record. In addition, upon  find-
    43  ing that a denial of any right created by this article and article seven
    44  of  this  chapter was without reasonable grounds and after the custodian
    45  or other official directly responsible for the denial has been given  an
    46  opportunity  to be heard at a hearing conducted in accordance with arti-
    47  cle seven of this chapter the committee may, in its  discretion,  impose
    48  against the custodian or other official a civil penalty of not less than
    49  twenty dollars nor more than one thousand dollars.
    50    ii.  If  the  committee finds that a person has taken an appeal frivo-
    51  lously, without reasonable grounds, after such person has been given  an
    52  opportunity  to be heard at a hearing conducted in accordance with arti-
    53  cle seven of this chapter, the committee may, in its discretion,  impose
    54  against  that person a civil penalty of not less than twenty dollars nor
    55  more than one thousand dollars.

        A. 7275                             4
 
     1    iii. The committee shall notify a person of a penalty  levied  against
     2  him  pursuant to this subdivision by written notice sent by certified or
     3  registered mail. If a person fails to pay the penalty within thirty days
     4  of receiving such notice, a court of competent  jurisdiction  shall,  on
     5  application of the committee, issue an order requiring the person to pay
     6  the penalty imposed.
     7    iv.  The  committee shall provide due notice to the parties and review
     8  affidavits and written arguments that the parties may submit  and  grant
     9  or  deny such leave summarily at its next regular meeting. The committee
    10  shall grant such leave unless it finds that the  appeal:  (A)  does  not
    11  present  a  claim  within the committee's jurisdiction; (B) would perpe-
    12  trate an injustice; or (C) would constitute an abuse of the  committee's
    13  administrative process. Any party aggrieved by the committee's denial of
    14  such  leave  may  apply  to  a  court  of competent jurisdiction, within
    15  fifteen days of the committee meeting at which such  leave  was  denied,
    16  for an order requiring the committee to hear such appeal.
    17    v.  In  making  the  findings  and  determination, the committee shall
    18  consider the nature of any justice or abuse of  administrative  process,
    19  including  but  not  limited  to:  (A)  the nature, content, language or
    20  subject matter of the request or the appeal; (B)  the  nature,  content,
    21  language  or  subject  matter  to  prior  or contemporaneous requests or
    22  appeals by the person making the request or taking the appeal;  and  (C)
    23  the  nature,  content,  language  or  subject matter of other verbal and
    24  written communications to any agency or any official of any agency  from
    25  the person making the request or taking the appeal.
    26    vi.  Notwithstanding any provision of this section to the contrary, in
    27  the case of an appeal to the committee of a denial by a  public  agency,
    28  the committee may, upon motion of such agency, confirm the action of the
    29  agency and dismiss the appeal without a hearing if it finds, after exam-
    30  ining the notice of appeal and construing all allegations most favorably
    31  to  the appellant, that (A) the agency has not violated this article and
    32  article seven of this chapter or (B) the agency has committed a  techni-
    33  cal  violation  that constitutes a harmless error that does not infringe
    34  the appellant's rights.
    35    (g) i. If in the judgment of the committee circumstances  so  warrant,
    36  it  may  at  any time after the filing of a notice of appeal endeavor to
    37  resolve the appeal by any method of  dispute  resolution  prescribed  by
    38  rule of the committee including, but not limited to, mediation.
    39    ii.  The  terms of any mediation agreement may contain such provisions
    40  as may be agreed upon by the committee, the appellant and  the  respond-
    41  ent.
    42    iii.  The  members  of  the committee and its staff shall not publicly
    43  disclose what transpired in the course of mediation efforts.
    44    iv. If a mediation agreement is  entered  into,  the  committee  shall
    45  embody  such  agreement  in an order and serve a copy of such order upon
    46  all parties to the agreement. Violation of such an order may  cause  the
    47  imposition of civil penalties.
    48    (h)  Any  party aggrieved by the decision of said committee may appeal
    49  to the judiciary therefrom, the court may conduct an in camera review of
    50  the original or a certified copy of the records which are  at  issue  in
    51  the  appeal  but  were  not  included  in  the record of the committee's
    52  proceedings, admit the records into evidence and order the records to be
    53  sealed or inspected on such terms as the court deems fair and  appropri-
    54  ate,  during  the  appeal.  The committee shall have standing to defend,
    55  prosecute or otherwise participate in any appeal of any of its decisions
    56  and to take an appeal from any judicial decision overturning or  modify-

        A. 7275                             5
 
     1  ing  a  decision  of  the  committee.   If agreement is a jurisdictional
     2  prerequisite to the committee taking  any  such  appeal,  the  committee
     3  shall  be  deemed to be aggrieved. Legal counsel employed or retained by
     4  said committee shall represent said committee in all such appeals and in
     5  any  other litigation affecting said committee.  Any appeal taken pursu-
     6  ant to this section shall be privileged in respect to its assignment for
     7  trial over all other actions except writs of habeas corpus  and  actions
     8  brought  by  or  on  behalf  of  the state, including information on the
     9  relation of private individuals. If the  court  finds  that  any  appeal
    10  taken  pursuant  to  this  section  is frivolous or taken solely for the
    11  purpose of delay, it shall order the party responsible therefor  to  pay
    12  to  the  party  injured  by  such  frivolous or dilatory appeal costs or
    13  attorney's fees of not more than one thousand dollars. Such order  shall
    14  be  in  addition  to any other remedy or disciplinary action required or
    15  permitted by statute or by rules of court.
    16    § 3. Paragraphs (b) and (c) of subdivision 4  of  section  89  of  the
    17  public  officers law, paragraph (b) as amended by chapter 22 of the laws
    18  of 2005 and paragraph (c) as amended by chapter 453 of the laws of 2017,
    19  are amended to read as follows:
    20    (b) Except as provided in subdivision five of this section,  a  person
    21  denied  access  to  a  record  in  an  appeal  determination  under  the
    22  provisions of paragraph (a) of this subdivision may [bring a  proceeding
    23  for review of such denial pursuant to article seventy-eight of the civil
    24  practice law and rules. In the event that access to any record is denied
    25  pursuant to the provisions of subdivision two of section eighty-seven of
    26  this  article, the agency involved shall have the burden of proving that
    27  such record falls within the provisions of such subdivision two. Failure
    28  by an agency to conform to the  provisions  of  paragraph  (a)  of  this
    29  subdivision shall constitute a denial.
    30    (c) The court in such a proceeding: (i) may assess, against such agen-
    31  cy  involved,  reasonable  attorney's  fees  and  other litigation costs
    32  reasonably incurred by such person in any case under the  provisions  of
    33  this  section in which such person has substantially prevailed, and when
    34  the agency failed to respond to a request or appeal within the statutory
    35  time; and (ii) shall assess, against such  agency  involved,  reasonable
    36  attorney's  fees  and other litigation costs reasonably incurred by such
    37  person in any case under the provisions of this section  in  which  such
    38  person  has  substantially prevailed and the court finds that the agency
    39  had no reasonable basis for denying access] appeal to the  committee  on
    40  open government pursuant to subdivision one of this section.
    41    §  4.  Section 107 of the public officers law, as added by chapter 511
    42  of the laws of 1976, subdivision 1 as amended by chapter 44 of the  laws
    43  of  2010 and subdivision 2 as amended by chapter 397 of the laws of 2008
    44  and such section as renumbered by chapter 652 of the laws  of  1983,  is
    45  amended to read as follows:
    46    §  107.  Enforcement. [1.] Any aggrieved person shall have standing to
    47  enforce the provisions of this article against  a  public  body  by  the
    48  commencement  of  [a proceeding pursuant to article seventy-eight of the
    49  civil practice law and rules, or an action for declaratory judgment  and
    50  injunctive  relief.  In any such action or proceeding, if a court deter-
    51  mines that a public body failed to comply with this article,  the  court
    52  shall  have  the  power,  in  its  discretion, upon good cause shown, to
    53  declare that the public body violated this article  and/or  declare  the
    54  action  taken  in  relation to such violation void, in whole or in part,
    55  without prejudice to reconsideration in compliance with this article. If
    56  the court determines that a public body has violated this  article,  the

        A. 7275                             6

     1  court  may  require  the  members of the public body to participate in a
     2  training session concerning the  obligations  imposed  by  this  article
     3  conducted by the staff of the committee on open government.
     4    An  unintentional  failure  to fully comply with the notice provisions
     5  required by this article shall not alone be grounds for invalidating any
     6  action taken at a meeting of a public body. The provisions of this arti-
     7  cle shall not affect the validity  of  the  authorization,  acquisition,
     8  execution or disposition of a bond issue or notes.
     9    2.  In  any  proceeding  brought  pursuant  to this section, costs and
    10  reasonable attorney fees may be awarded by the court, in its discretion,
    11  to the successful party. If a court determines that a vote was taken  in
    12  material  violation  of  this article, or that substantial deliberations
    13  relating thereto occurred in private prior to such vote, the court shall
    14  award costs and reasonable attorney's fees to the successful petitioner,
    15  unless there was a reasonable basis for a public body to believe that  a
    16  closed session could properly have been held.
    17    3.  The  statute of limitations in an article seventy-eight proceeding
    18  with respect to an action taken at executive session shall  commence  to
    19  run  from  the date the minutes of such executive session have been made
    20  available to the public] an appeal to the committee on  open  government
    21  pursuant to section eighty-nine of this chapter.
    22    §  5.  Paragraph  (a)  and  the  opening paragraph of paragraph (b) of
    23  subdivision 1, paragraph (c) of subdivision  3,  and  paragraph  (c)  of
    24  subdivision  4  of  section 87 of the public officers law, paragraph (a)
    25  and the opening paragraph of paragraph (b) of subdivision 1  as  amended
    26  by  chapter  80  of  the laws of 1983, paragraph (c) of subdivision 3 as
    27  amended by chapter 499 of the laws of 2008, and paragraph (c) of  subdi-
    28  vision  4  as  added  by chapter 102 of the laws of 2007, are amended to
    29  read as follows:
    30    (a) Within sixty days after the effective date of  this  article,  the
    31  governing body of each public corporation shall promulgate uniform rules
    32  and  regulations for all agencies in such public corporation pursuant to
    33  such general rules and regulations as may be promulgated by the  commit-
    34  tee  on  open government pursuant to section eighty-nine of this article
    35  in conformity with the provisions of this  article,  pertaining  to  the
    36  administration of this article.
    37    Each agency shall promulgate rules and regulations, in conformity with
    38  this  article  and applicable rules and regulations promulgated pursuant
    39  to the provisions of paragraph (a) of this subdivision, and pursuant  to
    40  such  general rules and regulations as may be promulgated by the commit-
    41  tee on open government  pursuant to section eighty-nine of this  article
    42  in  conformity  with  the  provisions of this article, pertaining to the
    43  availability of records and procedures to be  followed,  including,  but
    44  not limited to:
    45    (c)  a  reasonably  detailed  current  list  by  subject matter of all
    46  records in the possession of the agency, whether or not available  under
    47  this article. Each agency shall update its subject matter list annually,
    48  and  the date of the most recent update shall be conspicuously indicated
    49  on the list. Each state agency as defined in subdivision  four  of  this
    50  section  that  maintains  a  website  shall post its current list on its
    51  website and such posting shall be linked to the website of the committee
    52  on open government pursuant to section eighty-nine of this article.  Any
    53  such  agency  that does not maintain a website shall arrange to have its
    54  list posted on the website of the committee on open government  pursuant
    55  to section eighty-nine of this article.

        A. 7275                             7
 
     1    (c)  Each state agency that maintains a website shall post information
     2  related to this article  and  article  six-A  of  this  chapter  on  its
     3  website.  Such information shall include, at a minimum, contact informa-
     4  tion for the persons from whom records of the agency  may  be  obtained,
     5  the times and places such records are available for inspection and copy-
     6  ing,  and information on how to request records in person, by mail, and,
     7  if the agency accepts requests for records  electronically,  by  e-mail.
     8  This  posting  shall  be  linked to the website of the committee on open
     9  government pursuant to section eighty-nine of this article.
    10    § 6. This act shall take effect on the first of April next  succeeding
    11  the date on which it shall have become a law.
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