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A09975 Summary:

BILL NOA09975
 
SAME ASSAME AS S03257
 
SPONSORRosenthal L
 
COSPNSR
 
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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A09975 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A9975
 
SPONSOR: Rosenthal L
  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 THE BILL: The purpose of this bill is to provide for greater disclosure under the Freedom of Information Law.   SUMMARY OF SPECIFIC 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.   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 with- held 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: New bill.   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: The act shall take effect immediately.
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A09975 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          9975
 
                   IN ASSEMBLY
 
                                       May 1, 2024
                                       ___________
 
        Introduced  by  M.  of  A. L. ROSENTHAL -- 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
    24  should be excepted, for a defined period of time, from disclosure.   The
    25  submitter  may also provide a date by which such exception shall expire,
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07823-01-3

        A. 9975                             2
 
     1  provided that such date shall not exceed three years from  the  time  of
     2  the agency's receipt of the request for an exception.
     3    (ii)  Not  less  than  sixty  days prior to the expiration of the then
     4  current term of the exception request, the submitter may  apply  to  the
     5  agency  for a three-year extension of its exception request. Upon timely
     6  receipt of a request for an extension of an exception request, an agency
     7  shall review the application and either  grant  or  deny  the  extension
     8  request. A denial of an extension request may be appealed by the submit-
     9  ter  pursuant  to  paragraph  (c)  of this subdivision. If the submitter
    10  fails to apply for an extension, the exception shall  be  considered  to
    11  have expired.
    12    (3)  Information  submitted  subsequent  to  the effective date of the
    13  chapter of the laws of  two  thousand  twenty-three  that  amended  this
    14  subdivision and as provided in subparagraphs one and one-a of this para-
    15  graph shall be excepted from disclosure for a defined period of time and
    16  be maintained apart by the agency from all other records until the expi-
    17  ration  of  the  submitter's exception request or fifteen days after the
    18  entitlement to such  exception  has  been  finally  determined  or  such
    19  further time as ordered by a court of competent jurisdiction.
    20    (b)  [On]  During  the  effective period of an exception request under
    21  this subdivision, on the initiative of the agency at any time,  or  upon
    22  the request of any person for a record excepted from disclosure pursuant
    23  to this subdivision, the agency shall:
    24    (1)  inform  the  person  who  requested the exception of the agency's
    25  intention to determine whether  such  exception  should  be  granted  or
    26  continued;
    27    (2) permit the person who requested the exception, within ten business
    28  days  of  receipt  of  notification from the agency, to submit a written
    29  statement of the necessity for the  granting  or  continuation  of  such
    30  exception;
    31    (3)  within  seven business days of receipt of such written statement,
    32  or within seven business days of the expiration of the period prescribed
    33  for submission of such statement, issue a written  determination  grant-
    34  ing,  continuing  or  terminating such exception and stating the reasons
    35  therefor; copies of such determination shall be served upon the  person,
    36  if  any,  requesting the record, the person who requested the exception,
    37  and the committee on [public access to records] open government.
    38    (c) A denial of an exception from disclosure under  paragraph  (b)  of
    39  this  subdivision  may be appealed by the person submitting the informa-
    40  tion and a denial of access to the record may be appealed by the  person
    41  requesting the record in accordance with this subdivision:
    42    (1)  Within  seven  business days of receipt of written notice denying
    43  the request, the person may file a written appeal from the determination
    44  of the agency with the head of the agency, the chief  executive  officer
    45  or governing body or their designated representatives.
    46    (2)  The  appeal  shall  be determined within ten business days of the
    47  receipt of the appeal. Written notice  of  the  determination  shall  be
    48  served  upon  the  person, if any, requesting the record, the person who
    49  requested the exception and the committee on [public access to  records]
    50  open  government.    The notice shall contain a statement of the reasons
    51  for the determination.
    52    (d) (i) A proceeding to review an adverse  determination  pursuant  to
    53  paragraph  (c)  of this subdivision may be commenced pursuant to article
    54  seventy-eight of the civil practice law and rules. Such proceeding, when
    55  brought by a person seeking an exception  from  disclosure  pursuant  to
    56  this  subdivision,  must be commenced within fifteen days of the service

        A. 9975                             3
 
     1  of the written notice containing the adverse determination provided  for
     2  in subparagraph two of paragraph (c) of this subdivision. The proceeding
     3  shall  be  given preference and shall be brought on for argument on such
     4  terms  and conditions as the presiding justice may direct, not to exceed
     5  forty-five days.
     6    (ii) Appeal to the appellate division of the  supreme  court  must  be
     7  made  in  accordance  with subdivision (a) of section fifty-five hundred
     8  thirteen of the civil practice law and rules.
     9    (iii) An appeal taken from an order of the court requiring disclosure:
    10    (A) shall be given preference; and
    11    (B) shall be brought on for argument on such terms and  conditions  as
    12  the  presiding  justice may direct, upon application by any party to the
    13  proceeding; and
    14    (C) shall be deemed abandoned when the party requesting  an  exclusion
    15  from  disclosure fails to serve and file a record and brief within sixty
    16  days after the date of the notice of appeal, unless consent  of  further
    17  extension is given by all parties, or unless further extension is grant-
    18  ed  by  the  court  upon  such  terms as may be just and upon good cause
    19  shown.
    20    (e) The person requesting an exception  from  disclosure  pursuant  to
    21  this  subdivision  shall  in  all proceedings have the burden of proving
    22  entitlement to the exception.
    23    (f) Where the agency denies access to a record pursuant  to  paragraph
    24  [(d)  of] (b) of this subdivision in conjunction with subdivision two of
    25  section eighty-seven of this article, the agency shall have  the  burden
    26  of  proving  that  the record falls within the provisions of such excep-
    27  tion.
    28    (g) Nothing in this subdivision shall be construed to deny any  person
    29  access,  pursuant  to  the  remaining provisions of this article, to any
    30  record or part excepted from disclosure upon the express written consent
    31  of the person who had requested the exception.
    32    (h) As used in this subdivision the term "agency"  or  "state  agency"
    33  means  only  a  state  department,  board,  bureau, division, council or
    34  office and any public corporation the  majority  of  whose  members  are
    35  appointed by the governor.
    36    § 2. This act shall take effect immediately.
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