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A06895 Summary:

BILL NOA06895
 
SAME ASSAME AS S01506
 
SPONSOREnglebright
 
COSPNSRBronson
 
MLTSPNSR
 
Amd §89, Pub Off L
 
Requires entities that submit records to state agencies that are excepted from disclosure under FOIL to periodically re-apply for the exception.
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A06895 Actions:

BILL NOA06895
 
04/13/2021referred to governmental operations
01/05/2022referred to governmental operations
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A06895 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A6895
 
SPONSOR: Englebright
  TITLE OF BILL: 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-apply for the exception   PURPOSE OR GENERAL IDEA OF BILL: The purpose of this bill is to provide for greater disclosure under the Freedom of Information Law.   SUMMARY OF PROVISIONS: This bill would require that, subsequent to the effective date, when an entity submits a request to a state agency to have trade secrets excluded from release under the Freedom of Information Law, the request must specifically identify which portions of the record are to be excluded. The requester would also be able to set an expiration date for the exclusions, provided that such a date is not greater than 3 years. If the state agency agrees to the exclusions and the submitter did not set an expiration date, after 3 years the submitter must apply to the agency for a 3 year extension, upon which the agency must make a deter- mination as to if the exclusions should be extended. If the submitter does not apply for the extension, the exclusion will be considered to have expired. The bill also makes some technical changes to the Public Meetings Law.   DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):   JUSTIFICATION: Under current law, when an entity submits records to a state agency, that entity may identify portions of those records that should be excluded from release under the Freedom of Information Law (FOIL) as trade secrets. If approved, the exclusion remains in force until a FOIL request is made for those records. The agency must then contact the entity to determine if the records must continue to be withheld or if they can be released. If no FOIL request is made, the exclusion remains in force indefinitely. This bill would streamline this process by requiring entities to reapply for the exclusion every 3 years. If an entity does not re-apply, the exclusion is considered to be expired and the document can be released when a FOIL request is made.   PRIOR LEGISLATIVE HISTORY: 2011-12 A9022 passed assembly 2013-14 A6110 referred to governmental operations 2015-16 A6637 referred to governmental operations 2017-18 A3433 referred to governmental operations 2019-20 A4039 referred to governmental operations   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: Undetermined.   EFFECTIVE DATE: This act shall take effect immediately.
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A06895 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6895
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                     April 13, 2021
                                       ___________
 
        Introduced by M. of A. ENGLEBRIGHT, BRONSON -- read once and referred to
          the Committee on Governmental Operations
 
        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 and paragraph (d) as amended by  chapter
     4  707 of the laws of 2019, 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.
    21    (2) (i) The request for  an  exception  shall  be  in  writing,  shall
    22  specifically  identify  which  portions of the record are the subject of
    23  the request for exception and state  the  reasons  why  the  information
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05698-01-1

        A. 6895                             2
 
     1  should  be excepted, for a defined period of time, from disclosure.  The
     2  submitter may also provide a date by which such exception shall  expire,
     3  provided  that  such  date shall not exceed three years from the time of
     4  the agency's receipt of the request for an exception.
     5    (ii)  Not  less  than  sixty  days prior to the expiration of the then
     6  current term of the exception request, the submitter may  apply  to  the
     7  agency  for a three-year extension of its exception request. Upon timely
     8  receipt of a request for an extension of an exception request, an agency
     9  shall review the application and either  grant  or  deny  the  extension
    10  request. A denial of an extension request may be appealed by the submit-
    11  ter  pursuant  to  paragraph  (c)  of this subdivision. If the submitter
    12  fails to apply for an extension, the exception shall  be  considered  to
    13  have expired.
    14    (3)  Information  submitted  subsequent  to  the effective date of the
    15  chapter of the laws of two thousand twenty-one that amended this  subdi-
    16  vision  and as provided in subparagraphs one and one-a of this paragraph
    17  shall be excepted from disclosure for a defined period of  time  and  be
    18  maintained  apart by the agency from all other records until the expira-
    19  tion of the submitter's exception request  or  fifteen  days  after  the
    20  entitlement  to  such  exception  has  been  finally  determined or such
    21  further time as ordered by a court of competent jurisdiction.
    22    (b) [On] During the effective period of  an  exception  request  under
    23  this  subdivision,  on the initiative of the agency at any time, or upon
    24  the request of any person for a record excepted from disclosure pursuant
    25  to this subdivision, the agency shall:
    26    (1) inform the person who requested  the  exception  of  the  agency's
    27  intention  to  determine  whether  such  exception  should be granted or
    28  continued;
    29    (2) permit the person who requested the exception, within ten business
    30  days of receipt of notification from the agency,  to  submit  a  written
    31  statement  of  the  necessity  for  the granting or continuation of such
    32  exception;
    33    (3) within seven business days of receipt of such  written  statement,
    34  or within seven business days of the expiration of the period prescribed
    35  for  submission  of such statement, issue a written determination grant-
    36  ing, continuing or terminating such exception and  stating  the  reasons
    37  therefor;  copies of such determination shall be served upon the person,
    38  if any, requesting the record, the person who requested  the  exception,
    39  and the committee on [public access to records] open government.
    40    (c)  A  denial  of an exception from disclosure under paragraph (b) of
    41  this subdivision may be appealed by the person submitting  the  informa-
    42  tion  and a denial of access to the record may be appealed by the person
    43  requesting the record in accordance with this subdivision:
    44    (1) Within seven business days of receipt of  written  notice  denying
    45  the request, the person may file a written appeal from the determination
    46  of  the  agency with the head of the agency, the chief executive officer
    47  or governing body or their designated representatives.
    48    (2) The appeal shall be determined within ten  business  days  of  the
    49  receipt  of  the  appeal.  Written  notice of the determination shall be
    50  served upon the person, if any, requesting the record,  the  person  who
    51  requested  the exception and the committee on [public access to records]
    52  open government.  The notice shall contain a statement  of  the  reasons
    53  for the determination.
    54    (d)  (i)  A  proceeding to review an adverse determination pursuant to
    55  paragraph (c) of this subdivision may be commenced pursuant  to  article
    56  seventy-eight of the civil practice law and rules. Such proceeding, when

        A. 6895                             3
 
     1  brought  by  a  person  seeking an exception from disclosure pursuant to
     2  this subdivision, must be commenced within fifteen days of  the  service
     3  of  the written notice containing the adverse determination provided for
     4  in subparagraph two of paragraph (c) of this subdivision. The proceeding
     5  shall  be  given preference and shall be brought on for argument on such
     6  terms and conditions as the presiding justice may direct, not to  exceed
     7  forty-five days.
     8    (ii)  Appeal  to  the  appellate division of the supreme court must be
     9  made in accordance with subdivision (a) of  section  fifty-five  hundred
    10  thirteen of the civil practice law and rules.
    11    (iii) An appeal taken from an order of the court requiring disclosure:
    12    (A) shall be given preference; and
    13    (B)  shall  be brought on for argument on such terms and conditions as
    14  the presiding justice may direct, upon application by any party  to  the
    15  proceeding; and
    16    (C)  shall  be deemed abandoned when the party requesting an exclusion
    17  from disclosure fails to serve and file a record and brief within  sixty
    18  days  after  the date of the notice of appeal, unless consent of further
    19  extension is given by all parties, or unless further extension is grant-
    20  ed by the court upon such terms as may  be  just  and  upon  good  cause
    21  shown.
    22    (e)  The  person  requesting  an exception from disclosure pursuant to
    23  this subdivision shall in all proceedings have  the  burden  of  proving
    24  entitlement to the exception.
    25    (f)  Where  the agency denies access to a record pursuant to paragraph
    26  [(d) of] (b) of this subdivision in conjunction with subdivision two  of
    27  section  eighty-seven  of this article, the agency shall have the burden
    28  of proving that the record falls within the provisions  of  such  excep-
    29  tion.
    30    (g)  Nothing in this subdivision shall be construed to deny any person
    31  access, pursuant to the remaining provisions of  this  article,  to  any
    32  record or part excepted from disclosure upon the express written consent
    33  of the person who had requested the exception.
    34    (h)  As  used  in this subdivision the term "agency" or "state agency"
    35  means only a state  department,  board,  bureau,  division,  council  or
    36  office  and  any  public  corporation  the majority of whose members are
    37  appointed by the governor.
    38    § 2. This act shall take effect immediately.
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