Requires a particularized and specific justification for denial of access to records under the freedom of information law; relates to exemption from disclosure under the freedom of information law of certain law enforcement related records and records identifying victims.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5470
SPONSOR: Englebright TITLE OF BILL:
An act to amend the public officers law, in relation to requiring a
particularized and specific justification for denial of access to
records under the freedom of information law and exemption from disclo-
sure under the freedom of information law of certain law enforcement
related records; and to amend the civil rights law, in relation to
records identifying victims
PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this legislation is to clarify certain provisions of FOIL
and other disclosure laws to make sure that people are not wrongfully
denied access to public records.
SUMMARY OF PROVISIONS:
This bill would make changes to the Freedom of Information Law (FOIL)
and to section 50-b of the civil rights law. This bill would provide
that when an agency is considering denying access to records under the
law enforcement exception to FOIL on the grounds that disclosure would
interfere with a judicial proceeding, then the decision of whether to
grant access would be made by the judge presiding over that judicial
proceeding. This bill would clarify that a denial of access to records
under FOIL does not prevent a person from obtaining records under any
other law. In addition, the bill would clarify that parties to any civil
or criminal action or proceeding can use FOIL to obtain records concern-
ing the action or proceeding. Furthermore, this bill clarifies that
access to a record cannot be withheld due to the type or category of
record. This bill would also amend the law enforcement exception to FOIL
to make clear that records cannot be withheld solely because they relate
in some manner to an investigation or criminal proceeding. This bill
would also amend section 50-b of the civil rights law to clarify that
only the portions of a report that would identify a victim of a sexual
offense are exempt from disclosure.
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):
JUSTIFICATION:
FOIL provides individuals with greater access to their government which
helps achieve the goal of an open and transparent government. To that
end, there is a strong presumption under FOIL that government records
are accessible to the public and there are several defined exceptions of
access to records. Under current law, access to records or to portions
of records is sometimes withheld when they should not be. Too often
records that were prepared in the ordinary course of business, which
should be accessible to the public, have been withheld. This bill would
clarify certain provisions of FOIL and section 50-b of the civil rights
law to make sure that people are not wrongfully denied access to public
records.
PRIOR LEGISLATIVE HISTORY:
2011-12 A9460 referred to investigations and government operations
2013-14 A5170 referred to investigations and government operations
2015-16 A4468 referred to investigations and government operations
2017-18 A3463 referred to investigations and government operations
2019-20 A3939 vetoed memo. 252 of 2019
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None to the State
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
5470
2021-2022 Regular Sessions
IN ASSEMBLY
February 18, 2021
___________
Introduced by M. of A. ENGLEBRIGHT, GLICK, GALEF, PEOPLES-STOKES,
L. ROSENTHAL, ABINANTI, SEAWRIGHT, REYES, LUPARDO -- Multi-Sponsored
by -- M. of A. PERRY -- read once and referred to the Committee on
Governmental Operations
AN ACT to amend the public officers law, in relation to requiring a
particularized and specific justification for denial of access to
records under the freedom of information law and exemption from
disclosure under the freedom of information law of certain law
enforcement related records; and to amend the civil rights law, in
relation to records identifying victims
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 87 of the public officers law is amended by adding
2 a new subdivision 6 to read as follows:
3 6. When a request is made for agency records and the agency receiving
4 such request is considering denying access pursuant to subparagraph i of
5 paragraph (e) of subdivision two of this section on the grounds that
6 disclosure would interfere with a judicial proceeding, the agency
7 receiving such request shall promptly notify, in writing, the judge
8 before whom such judicial proceeding is pending and the person making
9 the request. Such judge shall notify the person requesting the record of
10 its receipt, and offer the person requesting the record a reasonable
11 opportunity to be heard. After due deliberation, such judge shall deter-
12 mine whether access to such records should be denied pursuant to subpar-
13 agraph i of paragraph (e) of subdivision two of this section and shall
14 submit such determination in writing to the agency and the person
15 requesting the record. The agency shall then proceed as required pursu-
16 ant to this article, in accordance with the court's determination.
17 § 2. Subdivision 6 of section 89 of the public officers law, as added
18 by chapter 933 of the laws of 1977 and as renumbered by chapter 890 of
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07836-01-1
A. 5470 2
1 the laws of 1981, is amended and a new subdivision 10 is added to read
2 as follows:
3 6. Nothing in this article shall be construed to limit or abridge any
4 otherwise available right of access at law or in equity of any party to
5 records. A denial of access to records or to portions thereof pursuant
6 to this article shall not limit or abridge any party's right of access
7 to such records pursuant to the civil practice law and rules, the crimi-
8 nal procedure law, or any other law.
9 10. Nothing in this article shall be construed to limit a person or
10 entity that is a party to any civil or criminal action or proceeding
11 from gaining access to records pursuant to this article relating to such
12 action or proceeding, provided, however, that nothing in this subdivi-
13 sion shall prevent the denial of access to such records or portions
14 thereof after providing particularized and specific justification that
15 such records may be withheld pursuant to this article.
16 § 3. The opening paragraph and paragraph (e) of subdivision 2 of
17 section 87 of the public officers law, as added by chapter 933 of the
18 laws of 1977, are amended to read as follows:
19 Each agency shall, in accordance with its published rules, make avail-
20 able for public inspection and copying all records, except those records
21 or portions thereof that may be withheld pursuant to the exceptions of
22 rights of access appearing in this subdivision. A denial of access shall
23 not be based solely on the category or type of such record and shall be
24 valid only when there is a particularized and specific justification for
25 such denial. Each agency shall, in accordance with its published rules,
26 make available for public inspection and copying all records, except
27 that such agency may deny access to records or portions thereof that:
28 (e) are [compiled] prepared or created for law enforcement purposes
29 [and which, if disclosed, would] only to the extent that disclosure
30 would:
31 i. interfere with law enforcement investigations or judicial
32 proceedings, provided however, that any agency considering denying
33 access pursuant to this subparagraph shall proceed in accordance with
34 subdivision six of this section;
35 ii. deprive a person of a right to a fair trial or impartial adjudi-
36 cation;
37 iii. identify a confidential source or disclose confidential informa-
38 tion relating to a criminal investigation; or
39 iv. reveal criminal investigative techniques or procedures, except
40 routine techniques and procedures;
41 § 4. Subdivision 1 of section 50-b of the civil rights law, as amended
42 by chapter 320 of the laws of 2006, is amended to read as follows:
43 1. The identity of any victim of a sex offense, as defined in article
44 one hundred thirty or section 255.25, 255.26 or 255.27 of the penal law,
45 or of an offense involving the alleged transmission of the human immuno-
46 deficiency virus, shall be confidential. No portion of any report,
47 paper, picture, photograph, court file or other documents, in the custo-
48 dy or possession of any public officer or employee, which identifies
49 such a victim shall be made available for public inspection. No such
50 public officer or employee shall disclose any portion of any police
51 report, court file, or other document, which tends to identify such a
52 victim except as provided in subdivision two of this section.
53 § 5. This act shall take effect immediately.
