Bill Text: NY S02678 | 2015-2016 | General Assembly | Introduced

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Bill Title: Provides for the optional review by the attorney general of requests denied under the Freedom of Information Law; provides that if the attorney general denies the appeal, the requester may proceed under CPLR article 78; and if the attorney general grants the appeal, the attorney general shall order the agency to make the record available; an agency aggrieved by such an order may proceed under CPLR article 78.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced - Dead) 2016-01-06 - REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS [S02678 Detail]

Download: New_York-2015-S02678-Introduced.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         2678
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                   January 27, 2015
                                      ___________
       Introduced  by  Sen. KRUEGER -- 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  and  the  executive  law,  in
         relation  to  providing  for  the  review  by  the attorney general of
         requests denied 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. Subdivision 4 of section 89 of the public officers law, as
    2  amended by chapter 22 of the laws of 2005, paragraph (c) as  amended  by
    3  chapter 492 of the laws of 2006, is amended to read as follows:
    4    4.  (a)  Except  as  provided in subdivision five of this section, any
    5  person denied access to a record may within thirty days appeal in  writ-
    6  ing  such  denial  to the head, chief executive or governing body of the
    7  entity, or the person therefor designated by such head, chief executive,
    8  or governing body, who shall within ten business days of the receipt  of
    9  such appeal fully explain in writing to the person requesting the record
   10  the  reasons for further denial, or provide access to the record sought.
   11  In addition, each agency shall immediately forward to the  committee  on
   12  open  government  a  copy of such appeal when received by the agency and
   13  the ensuing determination thereon. Failure by an agency  to  conform  to
   14  the  provisions  of subdivision three of this section shall constitute a
   15  denial.
   16   UPON RECEIPT OF A COPY OF AN  APPEAL  UNDER  PARAGRAPH  (A-1)  OF  THIS
   17  SUBDIVISION,  EACH  AGENCY SHALL IMMEDIATELY FORWARD TO THE COMMITTEE ON
   18  OPEN GOVERNMENT A COPY OF SUCH APPEAL WHEN RECEIVED BY  THE  AGENCY  AND
   19  THE ENSUING DETERMINATION THEREON.
   20    (A-1) EXCEPT AS PROVIDED IN SUBDIVISION FIVE OF THIS SECTION, A PERSON
   21  DENIED  ACCESS TO A RECORD PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION
   22  MAY WITHIN THIRTY DAYS APPEAL IN WRITING SUCH  DENIAL  TO  THE  ATTORNEY
   23  GENERAL,  WHO  SHALL  WITHIN TWENTY BUSINESS DAYS OF THE RECEIPT OF SUCH
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00246-01-5
       S. 2678                             2
    1  APPEAL, ADJUDGE SUCH APPEAL MERITORIOUS OR  NON-MERITORIOUS.  COPIES  OF
    2  SUCH DETERMINATION SHALL BE PROMPTLY FORWARDED BY CERTIFIED MAIL, RETURN
    3  RECEIPT  REQUESTED,  TO  THE PERSON REQUESTING THE RECORD AND THE AGENCY
    4  MAKING  FURTHER  DENIAL  THEREOF.  SUCH  DETERMINATION  SHALL  STATE THE
    5  OUTCOME OF THE APPEAL AND SHALL BRIEFLY EXPLAIN THE REASONS THEREFOR.
    6    (1) IF AN APPEAL IS  DETERMINED  TO  BE  NON-MERITORIOUS,  THE  PERSON
    7  REQUESTING  THE  RECORD  MAY  PROCEED  PURSUANT TO PARAGRAPH (B) OF THIS
    8  SUBDIVISION. PROCEEDING PURSUANT TO THE  PROVISIONS  OF  THIS  PARAGRAPH
    9  SHALL  NOT  BE  DEEMED  A  NECESSARY  CONDITION PRECEDENT FOR PROCEEDING
   10  PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION.
   11    (2) IF AN APPEAL IS DETERMINED TO BE MERITORIOUS, THE ATTORNEY GENERAL
   12  SHALL ORDER THE AGENCY TO PROVIDE ACCESS TO THE RECORD SOUGHT. AN AGENCY
   13  AGGRIEVED BY SUCH AN ORDER MAY BRING A PROCEEDING  FOR  REVIEW  OF  SUCH
   14  DENIAL  PURSUANT  TO ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND
   15  RULES;  PROVIDED  THAT  NO   SUCH   PROCEEDING   PURSUANT   TO   ARTICLE
   16  SEVENTY-EIGHT  OF THE CIVIL PRACTICE LAW AND RULES MAY BE BROUGHT UNLESS
   17  SUCH AGENCY SHALL HAVE NOTIFIED THE  ATTORNEY  GENERAL  AND  THE  PERSON
   18  REQUESTING  THE  RECORD OF ITS INTENT TO INSTITUTE SUCH A PROCEEDING, IN
   19  THE MANNER PRESCRIBED FOR THE SERVICE OF A SUMMONS, WITHIN TWENTY  BUSI-
   20  NESS  DAYS  OF THE MAILING OF THE DETERMINATION BY THE ATTORNEY GENERAL.
   21  THE COURT MAY EXTEND THIS PERIOD FOR AN ADDITIONAL TWENTY BUSINESS  DAYS
   22  FOR GOOD CAUSE SHOWN.
   23    (b)  Except  as provided in subdivision five of this section, a person
   24  denied  access  to  a  record  in  an  appeal  determination  under  the
   25  provisions  of  paragraph (a) of this subdivision may bring a proceeding
   26  for review of such denial pursuant to article seventy-eight of the civil
   27  practice law and rules. In the event that access to any record is denied
   28  pursuant to the provisions of subdivision two of section eighty-seven of
   29  this article, the agency involved shall have the burden of proving  that
   30  such record falls within the provisions of such subdivision two. Failure
   31  by  an  agency  to  conform  to  the provisions of paragraph (a) of this
   32  subdivision shall constitute a denial.
   33    (c) The court in such a proceeding may  assess,  against  such  agency
   34  involved,  reasonable attorney's fees and other litigation costs reason-
   35  ably incurred by such person in any case under the  provisions  of  this
   36  section in which such person has substantially prevailed, when:
   37    i. the agency had no reasonable basis for denying access; or
   38    ii.  the  agency  failed  to respond to a request or appeal within the
   39  statutory time.
   40    S 2. The executive law is amended by adding a new section 63-e to read
   41  as follows:
   42    S 63-E. ADJUDICATION BY ATTORNEY GENERAL OF APPEALS FOR THE DENIAL  OF
   43  ACCESS  TO  A  RECORD UNDER THE FREEDOM OF INFORMATION LAW. THE ATTORNEY
   44  GENERAL SHALL REVIEW APPEALS FOR THE DENIAL OF ACCESS TO A RECORD  UNDER
   45  THE  FREEDOM  OF INFORMATION LAW PURSUANT TO PARAGRAPH (A-1) OF SUBDIVI-
   46  SION FOUR OF SECTION EIGHTY-NINE OF THE PUBLIC OFFICERS LAW.  THE ATTOR-
   47  NEY GENERAL SHALL PRESCRIBE SUCH RULES OF PROCEDURE AND FORMS AS MAY  BE
   48  DEEMED  NECESSARY  OR  CONVENIENT  TO THE EXECUTION OF THE PROVISIONS OF
   49  THIS SECTION.
   50    S 3. This act shall take effect on the one hundred twentieth day after
   51  it shall have become a law. Effective immediately the department of  law
   52  is  authorized  to promulgate any and all rules and regulations and take
   53  any other measures necessary to implement this act on its effective date
   54  on or before such date.