Bill Text: NY A04633 | 2023-2024 | General Assembly | Introduced
Bill Title: Relates to the failure to produce records in response to a FOIL request; criminalizes the failure to comply with the freedom of information law.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced) 2024-01-03 - referred to governmental employees [A04633 Detail]
Download: New_York-2023-A04633-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 4633 2023-2024 Regular Sessions IN ASSEMBLY February 21, 2023 ___________ Introduced by M. of A. MCGOWAN -- read once and referred to the Commit- tee on Governmental Employees AN ACT to amend the public officers law, in relation to the failure to produce records in response to a FOIL request; and to amend the penal law, in relation to criminalizing the failure to comply with the free- dom of information law The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 86 of the public officers law is amended by adding 2 two new subdivisions 12 and 13 to read as follows: 3 12. "State agency" means any state department, division, commission, 4 public authority or public corporation. 5 13. "Head of agency" means the commissioner, acting commissioner, 6 deputy commissioner, superintendent, director, deputy director, or chief 7 executive officer of a state agency. 8 § 2. Paragraph (a) of subdivision 3 of section 89 of the public offi- 9 cers law, as amended by chapter 223 of the laws of 2008, is amended to 10 read as follows: 11 (a) (1) Each entity subject to the provisions of this article, within 12 five business days of the receipt of a written request for a record 13 reasonably described, shall: 14 (i) make such record available to the person requesting it[,]; 15 (ii) deny such request in writing; or 16 (iii) furnish a written acknowledgement of the receipt of such request 17 and a statement of the approximate date, which shall be reasonable under 18 the circumstances of the request, when such request will be granted or 19 denied, including, where appropriate, a statement that access to the 20 record will be determined in accordance with subdivision five of this 21 section. 22 (2) Any entity which furnishes such a written acknowledgement and 23 statement shall have up to thirty days from the date of the request to EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05635-01-3A. 4633 2 1 grant or deny such request, and where such request is granted, such 2 entity shall have up to a maximum of ninety days from the date of the 3 request to make such record available to the person requesting it. When 4 a state agency grants a request for records from a person and the 5 records are not made available within thirty days of such request, the 6 head of such agency shall have a duty to review such request and direct 7 such agency, in writing, to make the records available to the person who 8 made the request no later than ninety days from the date of such 9 request, and to ensure such records are made available. When a state 10 agency receives a request for records and provides a statement of the 11 approximate date when such request will be granted or denied, the head 12 of such agency shall have a duty to direct such agency, in writing, to 13 make such determination no later than thirty days from the date of such 14 request, and to ensure such determination is made by such agency within 15 such time. When a state agency has not denied a request for records or 16 made records available within thirty days of a request for records, the 17 head of such agency shall sign a certification, under penalty of perju- 18 ry, which shall be signed and posted on the agency's website within 19 forty-five days of the date of the request, and which shall include: 20 (i) Whether the head of such agency reviewed the request for records; 21 (ii) Whether the head of such agency directed the agency, in writing, 22 to make a determination to grant or deny such request within thirty days 23 from the date of such request; 24 (iii) Whether the request was granted or denied by the agency, or 25 whether the agency failed to make a determination to grant or deny such 26 request; and 27 (iv) Whether the head of such agency directed, in writing, that the 28 records be made available to the person who requested them no later than 29 ninety days after the date of such request. When a state agency receives 30 a request for records, and a determination whether to grant or deny such 31 request has not been made within thirty days of such request, the head 32 of such agency shall have a duty to notify the governor that the agency 33 has failed to make such determination, as required by this article, and 34 to provide a copy of such request. Upon receipt of such notice, the 35 governor, and any senior staff member of the governor, shall have an 36 affirmative duty to review such request and to direct such state agency, 37 in writing, to make a determination within forty-five days of the 38 request and to direct such state agency, in writing, to make the 39 requested records available within ninety days of the request, if such 40 agency grants such request. If such state agency fails to make a deter- 41 mination to grant or deny a request within forty-five days of the 42 request, or fails to make the requested records available within ninety 43 days of the request, the governor, and any senior appointed staff member 44 of the governor, shall each sign a separate certification, under penalty 45 of perjury, which shall be signed and posted on the governor's website 46 within sixty days after the record request and shall state whether the 47 governor, or any senior appointed staff member, directed such state 48 agency, in writing, to make a determination within forty-five days of 49 the request and whether the governor, or any senior appointed staff 50 member, directed such state agency to make the requested records avail- 51 able within ninety days of the request, if such agency granted such 52 request. 53 (3) An agency shall not deny a request on the basis that the request 54 is voluminous or that locating or reviewing the requested records or 55 providing the requested copies is burdensome because the agency lacks 56 sufficient staffing or on any other basis if the agency may engage anA. 4633 3 1 outside professional service to provide copying, programming or other 2 services required to provide the copy, the costs of which the agency may 3 recover pursuant to paragraph (c) of subdivision one of section eighty- 4 seven of this article. An agency may require a person requesting lists 5 of names and addresses to provide a written certification that such 6 person will not use such lists of names and addresses for solicitation 7 or fund-raising purposes and will not sell, give or otherwise make 8 available such lists of names and addresses to any other person for the 9 purpose of allowing that person to use such lists of names and addresses 10 for solicitation or fund-raising purposes. If an agency determines to 11 grant a request in whole or in part, and if circumstances prevent 12 disclosure to the person requesting the record or records within twenty 13 business days from the date of the acknowledgement of the receipt of the 14 request, the agency shall state, in writing, both the reason for the 15 inability to grant the request within twenty business days and a date 16 certain within a reasonable period, depending on the circumstances, when 17 the request will be granted in whole or in part. Upon payment of, or 18 offer to pay, the fee prescribed therefor, the entity shall provide a 19 copy of such record and certify to the correctness of such copy if so 20 requested, or as the case may be, shall certify that it does not have 21 possession of such record or that such record cannot be found after 22 diligent search. Nothing in this article shall be construed to require 23 any entity to prepare any record not possessed or maintained by such 24 entity except the records specified in subdivision three of section 25 eighty-seven and subdivision three of section eighty-eight of this arti- 26 cle. When an agency has the ability to retrieve or extract a record or 27 data maintained in a computer storage system with reasonable effort, it 28 shall be required to do so. When doing so requires less employee time 29 than engaging in manual retrieval or redactions from non-electronic 30 records, the agency shall be required to retrieve or extract such record 31 or data electronically. Any programming necessary to retrieve a record 32 maintained in a computer storage system and to transfer that record to 33 the medium requested by a person or to allow the transferred record to 34 be read or printed shall not be deemed to be the preparation or creation 35 of a new record. 36 § 3. Title P of the penal law is amended by adding a new article 285 37 to read as follows: 38 ARTICLE 285 39 OFFENSES AGAINST TRANSPARENCY IN GOVERNMENT 40 Section 285.05 Criminal failure to comply with the freedom of informa- 41 tion law. 42 § 285.05 Criminal failure to comply with the freedom of information law. 43 A person is guilty of criminal failure to comply with the freedom of 44 information law when: 45 1. such person is the governor, any senior appointed staff member of 46 the governor, or the head of a state agency; 47 2. pursuant to section eighty-nine of the public officers law, such 48 person has: 49 a. a duty to review a request for records; 50 b. a duty to direct a state agency to make a determination, in writ- 51 ing; 52 c. a duty to direct a state agency, in writing, to make records avail- 53 able in response to a request for records, or 54 d. a duty to provide a signed certification; and 55 3. such person, with intent, fails to review a request for records, 56 fails to direct a state agency to make a determination in writing, failsA. 4633 4 1 to direct a state agency to make records available in writing, or fails 2 to provide a signed certification. Notwithstanding any law to contrary, 3 the state or any state agency shall not indemnify or save harmless or 4 pay any penalty or legal fees of any person who is guilty of criminal 5 failure to comply with the freedom of information law. All those found 6 guilty of criminal failure to comply with the freedom of information law 7 shall not use public funds, or monies from political action committees 8 or campaign committees for the payment of fines or legal fees. 9 Criminal failure to comply with the freedom of information law is a 10 class B misdemeanor. 11 § 4. This act shall take effect on the ninetieth day after it shall 12 have become a law.
