Bill Text: NY S00027 | 2019-2020 | General Assembly | Introduced


Bill Title: Requires entities that submit records to state agencies that are excepted from disclosure under FOIL to periodically re-apply for the exception.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-01-08 - REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS [S00027 Detail]

Download: New_York-2019-S00027-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                           27
                               2019-2020 Regular Sessions
                    IN SENATE
                                       (Prefiled)
                                     January 9, 2019
                                       ___________
        Introduced  by  Sen. HOYLMAN -- read twice and ordered printed, and when
          printed to be committed to the Committee on Investigations and Govern-
          ment 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  339 of the laws of 2004, 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.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04117-01-9

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

        S. 27                               3
     1    (d)  A proceeding to review an adverse determination pursuant to para-
     2  graph (c) of this subdivision  may  be  commenced  pursuant  to  article
     3  seventy-eight of the civil practice law and rules. Such proceeding, when
     4  brought  by  a  person  seeking an exception from disclosure pursuant to
     5  this  subdivision,  must be commenced within fifteen days of the service
     6  of the written notice containing the adverse determination provided  for
     7  in subparagraph two of paragraph (c) of this subdivision.
     8    (e)  The  person  requesting  an exception from disclosure pursuant to
     9  this subdivision shall in all proceedings have  the  burden  of  proving
    10  entitlement to the exception.
    11    (f)  Where  the agency denies access to a record pursuant to paragraph
    12  [(d) of] (b) of this subdivision in conjunction with subdivision two  of
    13  section  eighty-seven  of this article, the agency shall have the burden
    14  of proving that the record falls within the provisions  of  such  excep-
    15  tion.
    16    (g)  Nothing in this subdivision shall be construed to deny any person
    17  access, pursuant to the remaining provisions of  this  article,  to  any
    18  record or part excepted from disclosure upon the express written consent
    19  of the person who had requested the exception.
    20    (h)  As  used  in this subdivision the term "agency" or "state agency"
    21  means only a state  department,  board,  bureau,  division,  council  or
    22  office  and  any  public  corporation  the majority of whose members are
    23  appointed by the governor.
    24    § 2. This act shall take effect immediately.
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