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A05613 Summary:

Amd 89, Pub Off L
Provides for accessing records under the freedom of information law including notification procedures and the release of names of natural persons and residential addresses.
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A05613 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
SPONSOR: Zebrowski
  PURPOSE OR GENERAL IDEA OF BILL: The purpose of this bill is to clarify certain provisions of the freedom of information law.   SUMMARY OF PROVISIONS: Section one amends Subparagraph iii of paragraph (b) of subdivision 2 and subdivision 3 of section 89 of the public officers' law to make various technical and clarifying amendments. Section two provides the effective date.   JUSTIFICATION: There are two provisions of FOIL that state that an unwarranted invasion of personal privacy includes the disclosure of a list of names and addresses if a list would be used for solicitation or fundraising purposes. The ability to deny access pertains to a list of natural persons and their residential' addresses since the language includes personal privacy. The exception should not apply to a list of vendors' or others engaged in a business or professional activities. Additionally, FOIL does not require an agency to create new records to respond to a request. The principle is that FOIL pertains to existing records and does not require that an agency create new records to respond to a request. Additionally, there is a need to clarify the existing provisions relat- ing to the time in which an agency is required to respond to a FOIL request. This bill addresses these technical considerations. The changes to FOIL proposed by this bill were recommended by the Committee on Open Govern- ment.   LEGISLATIVE HISTORY: 2021-22: A.7544 2019-20: A.119A Passed Assembly 2017: A.8255 (Buchwald) - Passed governmental operations and reported to Rules / S.6816 (Lanza) - Referred to Rules 2018: A.8255 (Buchwald - Passed the Assembly 133 to 0 / S.6816 (Lanza) Advanced to Third Reading 2019: A.119 (Buchwald) -Referred to governmental operations   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.   EFFECTIVE DATE: This act shall take effect immediately.
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A05613 Text:

                STATE OF NEW YORK
                               2023-2024 Regular Sessions
                   IN ASSEMBLY
                                     March 17, 2023
        Introduced  by  M.  of A. ZEBROWSKI, PAULIN -- read once and referred to
          the Committee on Governmental Operations -- recommitted to the Commit-
          tee on Governmental Operations in accordance  with  Assembly  Rule  3,
          sec.  2  --  committee  discharged, bill amended, ordered reprinted as
          amended and recommitted to said committee -- again reported from  said
          committee  with amendments, ordered reprinted as amended and recommit-
          ted to said committee
        AN ACT to amend the  public  officers  law,  in  relation  to  accessing
          records under the freedom of information law
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Subparagraph iii of paragraph  (b)  of  subdivision  2  and
     2  subdivision 3 of section 89 of the public officers law, subparagraph iii
     3  of paragraph (b) of subdivision 2 as amended by section 2 of part GGG of
     4  chapter  59 of the laws of 2019, subdivision 3 as amended by chapter 223
     5  of the laws of 2008 and paragraph (c) of subdivision 3 as added by chap-
     6  ter 47 of the laws of 2018, are amended to read as follows:
     7    iii. sale or release of lists of names of natural persons and residen-
     8  tial addresses if such lists would be used  for  solicitation  or  fund-
     9  raising purposes;
    10    3.  (a)  Each entity subject to the provisions of this article, within
    11  five business days of the receipt of a  written  request  for  a  record
    12  reasonably  described,  shall  make  such record available to the person
    13  requesting it, deny  such  request  in  writing  or  furnish  a  written
    14  acknowledgement  of  the  receipt of such request and a statement of the
    15  approximate date, which shall be reasonable under the  circumstances  of
    16  the  request,  when  [such request will be granted or denied] a response
    17  will be given, including, where appropriate, a statement that access  to
    18  the  record  will  be  determined in accordance with subdivision five of
    19  this section.

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

        A. 5613--B                          2
     1    (b) An agency shall not deny a request on the basis that  the  request
     2  is  voluminous  or  that  locating  or reviewing the requested record or
     3  records or providing the requested  copies  is  burdensome  because  the
     4  agency lacks sufficient staffing or on any other basis if the agency may
     5  engage  an  outside professional service to provide copying, programming
     6  or other services required to provide the copy, the costs of  which  the
     7  agency  may  recover  pursuant  to  paragraph  (c) of subdivision one of
     8  section eighty-seven of this article.
     9    (c) An agency may require a  person  requesting  lists  of  names  and
    10  addresses  to  provide a written certification that such person will not
    11  use such lists of names of natural persons and residential addresses for
    12  solicitation or fund-raising purposes and will not sell, give or  other-
    13  wise  make  available  such  lists  of  names and addresses to any other
    14  person for the purpose of allowing that person  to  use  such  lists  of
    15  names and addresses for solicitation or fund-raising purposes.
    16    (d)  If  [an agency determines to grant a request in whole or in part,
    17  and if] circumstances  prevent  an  agency  from  notifying  the  person
    18  requesting the record or records of the agency's determination regarding
    19  the  rights of access and disclosure to the person requesting the record
    20  or records within twenty business days from the date of the acknowledge-
    21  ment of the receipt of the request, the agency shall state, in  writing,
    22  both  the  reason  for the inability to [grant the request] do so within
    23  twenty business days and a date  certain  within  a  reasonable  period,
    24  depending  on  the  circumstances,  when [the request will be granted in
    25  whole or in part] a determination regarding disclosure will be rendered.
    26    (e) Upon payment of, or offer to pay, the fee prescribed therefor, the
    27  entity shall provide a copy of such record and certify to  the  correct-
    28  ness  of such copy if so requested, or as the case may be, shall certify
    29  that it does not have possession of such  record  or  that  such  record
    30  cannot be found after diligent search.
    31    (f)  Nothing  in this article shall be construed to require any entity
    32  to [prepare] create any record not possessed or maintained by such enti-
    33  ty except the records specified in subdivision three of section  eighty-
    34  seven  and  subdivision  three  of section eighty-eight of this article.
    35  When an agency has the ability to retrieve or extract a record  or  data
    36  maintained in a computer storage system with reasonable effort, it shall
    37  be  required  to  do  so. When doing so requires less employee time than
    38  engaging in manual retrieval or redactions from non-electronic  records,
    39  the  agency shall be required to retrieve or extract such record or data
    40  electronically. [Any programming necessary to retrieve] The retrieval of
    41  a record maintained in a computer storage system and [to]  the  transfer
    42  of  that  record to the medium requested by a person or to a medium that
    43  would allow the transferred record to be read or printed  shall  not  be
    44  deemed to be the [preparation or] creation of a new record.
    45    [(b)]  (g)  All  entities  shall,  provided such entity has reasonable
    46  means available, accept requests for records submitted in  the  form  of
    47  electronic  mail  and shall respond to such requests by electronic mail,
    48  using forms, to the extent practicable,  consistent  with  the  form  or
    49  forms developed by the committee on open government pursuant to subdivi-
    50  sion  one  of this section and provided that the written requests do not
    51  seek a response in some other form.
    52    [(c)] (h) Each state agency, as defined in subdivision  five  of  this
    53  section,  that maintains a website shall ensure its website provides for
    54  the online submission of a request for records pursuant to this article.
    55    § 2. This act shall take effect immediately.
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