Bill Text: NY S03438 | 2023-2024 | General Assembly | Introduced
Bill Title: Requires governmental and certain nongovernmental entities to publish public records proactively on the internet that are of public interest.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-01-03 - REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS [S03438 Detail]
Download: New_York-2023-S03438-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 3438 2023-2024 Regular Sessions IN SENATE January 31, 2023 ___________ Introduced by Sen. SKOUFIS -- 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 making certain public records available on the internet The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 84 of the public officers law, as added by chapter 2 933 of the laws of 1977, is amended to read as follows: 3 § 84. Legislative declaration. The legislature hereby finds that a 4 free society is maintained when government is responsive and responsible 5 to the public, and when the public is aware of governmental actions. The 6 more open a government is with its citizenry, the greater the under- 7 standing and participation of the public in government. People have a 8 right to know how government operates and spends money. 9 As state and local government services increase and public problems 10 become more sophisticated and complex and therefore harder to solve, and 11 with the resultant increase in revenues and expenditures, it is incum- 12 bent upon the state and its localities to extend public accountability 13 wherever and whenever feasible. 14 The people's right to know the process of governmental decision-making 15 and to review the documents and statistics leading to determinations is 16 basic to our society. Access to such information should not be thwarted 17 by shrouding it with the cloak of secrecy or confidentiality. 18 Since the Freedom of Information Law was first adopted, advances in 19 technology have enhanced the ability to gain access to and widely 20 disseminate public information. Accordingly, the legislature finds that 21 government agencies, when agencies have the ability to do so, should 22 publish public records proactively on the internet that are of public 23 interest and available under this article. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD06932-01-3S. 3438 2 1 The legislature therefore declares that government is the public's 2 business and that the public, individually and collectively and repres- 3 ented by a free press, should have access to the records of government 4 in accordance with the provisions of this article. 5 § 2. Subdivisions 3 and 4 of section 86 of the public officers law, as 6 added by chapter 933 of the laws of 1977, are amended and two new subdi- 7 visions 12 and 13 are added to read as follows: 8 3. "Agency" excludes the judiciary and state legislature, and means 9 any state or municipal department, school district, board, bureau, divi- 10 sion, commission, committee, public authority, public corporation, coun- 11 cil, office or other governmental entity performing a governmental or 12 proprietary function for the state or any one or more municipalities 13 thereof, [except the judiciary or the state legislature] or any other 14 body, by whatever name, acting on behalf of government which, considered 15 in its totality, is functionally equivalent to an agency as defined in 16 this subdivision because it substantially possesses any of the following 17 features and functions: 18 (a) The body performs a governmental or proprietary function for the 19 state or municipality; 20 (b) The body's members have authority to make decisions or recommenda- 21 tions on policy and administration affecting the conduct of the business 22 of the people in the governmental sector; 23 (c) The body was created by a governmental or governmental-affiliated 24 entity or the body's origin and authority may be traced to governmental 25 action; 26 (d) The body is controlled by, overseen or operationally managed by a 27 governmental or governmental-affiliated entity; 28 (e) The body receives substantial government financial or nonfinancial 29 support; 30 (f) The body's officers and employees are public employees or are 31 nominated or appointed by public employees; or 32 (g) The body was previously determined to be open to public access. 33 4. "Record" means any [information kept, held, filed, produced or34reproduced by, with or for an agency or the state legislature, in any35physical form whatsoever including, but not limited to, reports, state-36ments, examinations, memoranda, opinions, folders, files, books, manu-37als, pamphlets, forms, papers, designs, drawings, maps, photos, letters,38microfilms, computer tapes or discs, rules, regulations or codes] docu- 39 ments or electronically stored information, including but not limited to 40 any writing, drawing, graph, chart, photograph, sound recording, video 41 recording, image, and other data or data compilation, stored in any 42 medium from which information can be obtained either directly or, if 43 necessary, after translation by the agency into a reasonably usable 44 form. 45 12. "Publishable state data" means data collected by a state agency 46 that the agency is permitted, required or able to make available to the 47 public, consistent with any and all applicable laws, rules, regulations, 48 ordinances, resolutions, policies or other restrictions, requirements or 49 rights associated with the state data, including but not limited to 50 contractual or other legal orders, restrictions or requirements. Data 51 shall not be publishable state data if making such data available on a 52 website would violate statute or regulation, including disclosure that 53 would constitute an unwarranted invasion of personal privacy, endanger 54 the public health, safety or welfare, hinder the operation of govern- 55 ment, including criminal and civil investigations, or impose an undueS. 3438 3 1 financial, operational or administrative burden on the state agency or 2 state. 3 13. "Business days" and "days" shall be calculated from date of 4 submission, if electronic, or else postmark date. 5 § 3. Paragraphs (a) and (b) of subdivision 1, paragraphs (c), (d), (e) 6 and (g) of subdivision 2, paragraph (c) of subdivision 3 and paragraphs 7 (b) and (c) of subdivision 4 of section 87 of the public officers law, 8 paragraph (a) and the opening paragraph of paragraph (b) of subdivision 9 1 as amended by chapter 80 of the laws of 1983, paragraph (b) of subdi- 10 vision 1 and paragraph (c) of subdivision 2 as added by chapter 933 of 11 the laws of 1977, subparagraph iii of paragraph (b) of subdivision 1 as 12 amended by chapter 745 of the laws of 2022, paragraph (d) of subdivision 13 2 as amended by chapter 289 of the laws of 1990, paragraph (e) of subdi- 14 vision 2 as amended by chapter 155 of the laws of 2022, paragraph (g) of 15 subdivision 2 as amended by chapter 510 of the laws of 1999, paragraph 16 (c) of subdivision 3 as amended by chapter 499 of the laws of 2008, 17 paragraph (b) of subdivision 4 as added by chapter 890 of the laws of 18 1981 and paragraph (c) of subdivision 4 as added by chapter 102 of the 19 laws of 2007, are amended and a new subdivision 6 is added to read as 20 follows: 21 (a) [Within sixty days after the effective date of this article, the22governing body of each public corporation shall promulgate uniform rules23and regulations for all agencies in such public corporation pursuant to24such general rules and regulations as may be promulgated by the] The 25 committee on open government shall promulgate general rules and regu- 26 lations in conformity with the provisions of this article, pertaining to 27 the administration of this article. 28 (b) Each agency shall [promulgate rules and regulations, in conformity29with this article and applicable rules and regulations promulgated30pursuant to] adopt the provisions of paragraph (a) of this subdivision, 31 and pursuant to such general rules and regulations as [may be] are 32 promulgated by the committee on open government in [conformity with the33provisions of this article, pertaining to the availability of records34and procedures to be followed] accordance with the provisions of para- 35 graph (a) of this subdivision, shall promulgate agency-specific rules 36 and regulations in conformity with the provisions of this article, 37 including, but not limited to: 38 i. the times and places [such] agency records are available; 39 ii. the persons from whom such records may be obtained[,]; and 40 iii. the fees for copies of records which shall not exceed twenty-five 41 cents per photocopy not in excess of nine inches by fourteen inches, or 42 the actual cost of reproducing any other record in accordance with the 43 provisions of paragraph (c) of this subdivision, except when a different 44 fee is otherwise prescribed by statute. In the case where an identical 45 record has been prepared for a previous request within the past 6 months 46 and an electronic copy is available, an agency shall not charge a fee. 47 If more than one request is made for an identical record before any such 48 request has been fulfilled, any fees charged by the agency under this 49 subparagraph shall be apportioned equally among the requestors. 50 (c) if disclosed would impair present or imminent contract awards [or] 51 excluding collective bargaining negotiations; 52 (d) are trade secrets or are submitted to an agency by a commercial 53 enterprise or derived from information obtained from a commercial enter- 54 prise under compulsion of law or regulation and which if disclosed would 55 cause substantial injury to the competitive position of the subject 56 enterprise;S. 3438 4 1 (e) are compiled for such agency's law enforcement purposes only to 2 the extent that disclosure would: 3 i. interfere with such agency's law enforcement investigations or 4 judicial proceedings, provided however, that any agency, which is not 5 conducting the investigation that the requested records relate to, that 6 is considering denying access pursuant to this subparagraph shall 7 receive confirmation from the law enforcement or investigating agency 8 conducting the investigation that disclosure of such records will inter- 9 fere with an ongoing investigation; 10 ii. deprive a person of a right to a fair trial or impartial adjudi- 11 cation; 12 iii. identify a confidential source or disclose confidential informa- 13 tion relating to a criminal investigation; or 14 iv. reveal criminal investigative techniques or procedures, except 15 routine techniques and procedures; 16 (g) are inter-agency or intra-agency deliberative materials, including 17 recommendations, proposals, suggestions, and other subjective documents 18 reflecting the personal opinions of the writer or writers rather than 19 the policy of the agency, which are not: 20 i. statistical or factual tabulations or data; 21 ii. instructions to staff that affect the public; 22 iii. final agency policy or determinations; 23 iv. external audits, including but not limited to audits performed by 24 the comptroller and the federal government; or 25 (c) a reasonably detailed current list by subject matter of all 26 records in the possession of the agency, whether or not available under 27 this article. Each agency shall update its subject matter list annually, 28 and the date of the most recent update shall be conspicuously indicated 29 on the list. Each state agency as defined in subdivision four of this 30 section [that maintains a website] shall post its current list on its 31 website and such posting shall be linked to the website of the committee 32 on open government. [Any such agency that does not maintain a website33shall arrange to have its list posted on the website of the committee on34open government.] 35 (b) As used in this subdivision the term "agency" or "state agency" 36 means [only a state department, board, bureau, division, council or37office and any public corporation the majority of whose members are38appointed by the governor] a board, bureau, division, commission, 39 committee, public authority, public corporation, council, office or 40 other governmental entity performing a governmental or proprietary func- 41 tion for the state, except the judiciary or the state legislature. 42 (c) Each state agency [that maintains] shall maintain a website 43 [shall] and post information related to this article and article six-A 44 of this chapter on its website. Such information shall include, at a 45 minimum, contact information for the persons from whom records of the 46 agency may be obtained, the times and places such records are available 47 for inspection and copying, and information on how to request records in 48 person, by mail, and[, if the agency accepts requests for records elec-49tronically,] by e-mail. This posting shall be linked to the website of 50 the committee on open government. 51 (d) Every state agency shall make its publishable state data available 52 on the agency's website or to the office of information technology 53 services to be available on the state's open data website. 54 (e) Every agency shall make available on its website's homepage a link 55 to that agency's current fiscal year budget.S. 3438 5 1 (f) Every agency shall make available copies of all current and 2 proposed collective bargaining agreements and related documents, includ- 3 ing, but not limited to, all addenda, schedules, memoranda, and other 4 attachments. 5 6. Whenever there is a question as to whether or not a record should 6 be disclosed, it shall be presumed that the requestor is entitled to the 7 record. 8 § 4. Subdivision 1, paragraphs (a) and (b) of subdivision 2, subdivi- 9 sions 3 and 4 and paragraph (h) of subdivision 5 of section 89 of the 10 public officers law, subdivision 1 as added by chapter 933 of the laws 11 of 1977, paragraph (a) of subdivision 1 as amended by chapter 33 of the 12 laws of 1984, paragraph (b) of subdivision 1 as amended by chapter 182 13 of the laws of 2006, paragraph (a) of subdivision 2 as amended by 14 section 11 of part U of chapter 61 of the laws of 2011, paragraph (b) of 15 subdivision 2 as amended by section 2 of part GGG of chapter 59 of the 16 laws of 2019, subdivision 3 as amended by chapter 223 of the laws of 17 2008, paragraph (c) of subdivision 3 as added by chapter 47 of the laws 18 of 2018, subdivision 4 as amended by chapter 22 of the laws of 2005, 19 paragraph (c) of subdivision 4 as amended by chapter 453 of the laws of 20 2017, paragraph (d) of subdivision 4 as added by chapter 487 of the laws 21 of 2016 and paragraph (h) of subdivision 5 as added by chapter 890 of 22 the laws of 1981, are amended to read as follows: 23 1. (a) i. The committee on open government is continued and shall 24 consist of [the lieutenant governor or the delegate of such officer, the25secretary of state or the delegate of such officer, whose office shall26act as secretariat for the committee, the commissioner of the office of27general services or the delegate of such officer, the director of the28budget or the delegate of such officer, and] seven [other] persons, none 29 of whom shall hold any other state or local public office except the 30 representative of local governments as set forth herein, to be appointed 31 as follows: [five by the governor, at least two of whom are or have been32representatives of the news media, one of whom shall be a representative33of local government who, at the time of appointment, is serving as a34duly elected officer of a local government, one by the temporary presi-35dent of the senate, and one by the speaker of the assembly. The persons36appointed by the temporary president of the senate and the speaker of37the assembly shall be appointed to serve, respectively, until the expi-38ration of the terms of office of the temporary president and the speaker39to which the temporary president and speaker were elected. The four40persons presently serving by appointment of the governor for fixed terms41shall continue to serve until the expiration of their respective terms.42Thereafter, their respective successors shall be appointed for terms of43four years. The member representing local government shall be appointed44for a term of four years, so long as such member shall remain a duly45elected officer of a local government.] two representatives, each of 46 whom is from the news media or a nongovernmental nonprofit group that 47 works on issues related to transparency or open government, two repre- 48 sentatives of local government who, at the time of appointment, are 49 serving as duly elected officers of a local government, and three 50 private citizens of the state, none of whom may be custodians of public 51 records, members of the news media or a nonprofit group that works on 52 issues related to transparency or open government, or a staff member or 53 spokesperson for an organization that represents custodians or reque- 54 stors of public records. Of the seven members, at least two shall be 55 attorneys admitted to practice in New York and at least two shallS. 3438 6 1 possess expertise concerning electronic records, including electronic 2 storage, retrieval, review, and reproduction technologies. 3 ii. Members of the committee shall be appointed from a pool of appli- 4 cants identified by the governor and the governor shall publish on the 5 governor's website notice of the governor's intent to consider appli- 6 cants for positions on the committee on open government and the notice 7 shall include the application procedures, criteria for evaluating appli- 8 cants' qualifications, and procedures for resolving any conflicts of 9 interest; and solicit recommendations for committee members from agen- 10 cies, news media, and nongovernmental nonprofit groups that work on 11 issues related to transparency or open government; and post names and 12 qualifications of applicants on the governor's website; and when evalu- 13 ating an applicant, consider the need for geographic, political, racial, 14 ethnic, cultural, and gender diversity on the committee and ensure the 15 neutrality of the committee. 16 iii. Subject to the advice and consent of the senate, the governor 17 shall appoint the members of the committee from the pool of applicants 18 created pursuant to this section. 19 iv. The committee shall [hold no less than two meetings annually] meet 20 at least monthly, but may meet at any time. 21 v. The members of the committee shall be entitled to reimbursement for 22 actual expenses incurred in the discharge of their duties. 23 (b) The committee shall: 24 i. [furnish to any agency advisory guidelines, opinions or other25appropriate information regarding this article] issue advisory opinions 26 to any agency or person which shall be made available on the committee's 27 website; 28 ii. [furnish to any person advisory opinions or other appropriate29information regarding this article] provide annual training to agencies, 30 public officials and public employees on articles six and seven of this 31 chapter; 32 iii. promulgate rules and regulations [with respect to the implementa-33tion of subdivision one and paragraph (c) of subdivision three of34section eighty-seven] to carry out the provisions of this article which 35 shall be made available on the committee's website; 36 iv. [request from any agency such assistance, services and information37as will enable the committee to effectively carry out its powers and38duties] assign appeals officers to review appeals of decisions by agen- 39 cies and issue orders and opinions. The committee shall employ or 40 contract with attorneys to serve as appeals officers to review appeals 41 and, if necessary, to hold hearings on a regional basis under this arti- 42 cle. Each appeals officer must comply with all of the following: (A) 43 complete a training course provided by the committee prior to acting as 44 an appeals officer; (B) if a hearing is necessary, hold hearings 45 regionally as necessary to ensure access to the remedies provided by 46 this article and article seven of this chapter; and (C) comply with the 47 procedures under this article and article seven of this chapter and any 48 rules or regulations promulgated by the committee; 49 v. [develop a form, which shall be made available on the internet,50that may be used by the public to request a record] establish an 51 informal mediation program to resolve disputes under this article and 52 article seven of this chapter; and 53 vi. report on its activities [and findings], including the number and 54 nature of complaints filed with the committee, its decisions, and any 55 recommended changes to the law regarding this article and article seven 56 of this chapter, [including recommendations for changes in the law,] toS. 3438 7 1 the governor and the legislature annually, on or before [December2fifteenth] October thirty-first. 3 (c) The committee shall appoint an executive director who shall not be 4 an existing state employee and who shall serve for a term of five years, 5 unless removed by a majority vote of the committee. The executive direc- 6 tor shall receive a salary in the same amount as set forth for state 7 officers in subdivision two of section one hundred sixty-nine of the 8 executive law. The executive director may serve no more than two terms. 9 (d) The executive director shall not seek election nor accept appoint- 10 ment to any political office during his or her tenure as executive 11 director and for one year thereafter. 12 (e) The executive director shall ensure that the duties of the commit- 13 tee on open government are carried out and shall monitor appeals and 14 complaints submitted to the committee. 15 (a) The committee on [public access to records may] open government 16 shall promulgate guidelines regarding deletion of identifying details or 17 withholding of records otherwise available under this article to prevent 18 unwarranted invasions of personal privacy. [In the absence of such19guidelines, an agency may delete identifying details when it makes20records available.] 21 (b) An unwarranted invasion of personal privacy includes, but shall 22 not be limited to: 23 i. disclosure of employment, medical or credit histories or personal 24 references of applicants for employment; 25 ii. disclosure of items involving the medical or personal records of a 26 client or patient in a medical facility; 27 iii. sale or release of lists of names of natural persons and residen- 28 tial addresses if such lists would be used for solicitation or fund- 29 raising purposes; 30 iv. disclosure of information of a personal nature when disclosure 31 would result in economic or personal hardship to the subject party and 32 such information is not relevant to the work of the agency requesting or 33 maintaining it; 34 v. disclosure of information of a personal nature reported in confi- 35 dence to an agency and not relevant to the ordinary work of such agency; 36 vi. information of a personal nature contained in a workers' compen- 37 sation record, except as provided by section one hundred ten-a of the 38 workers' compensation law; 39 vii. disclosure of electronic contact information, such as an e-mail 40 address or a social network username, that has been collected from a 41 taxpayer under section one hundred four of the real property tax law; or 42 viii. disclosure of law enforcement arrest or booking photographs of 43 an individual, unless public release of such photographs will serve a 44 specific law enforcement purpose and disclosure is not precluded by any 45 state or federal laws. 46 3. (a) Each entity subject to the provisions of this article, within 47 [five] ten business days of the receipt of a [written request for a48record reasonably described] record or records request, shall make such 49 record or records available to the [person requesting it, deny such50request in writing] requestor or furnish a written acknowledgement of 51 the receipt of such request [and a statement of the approximate date,52which shall be reasonable under the circumstances of the request, when53such request will be granted or denied,] including, where appropriate, a 54 statement that access to the record or records will be determined in 55 accordance with subdivision five of this section. Such acknowledgement 56 shall include:S. 3438 8 1 i. a statement of the approximate date, which shall be reasonable 2 under the circumstances of the request not to exceed twenty business 3 days from receipt of the original request, and advising if exceptions 4 will apply, when such request will be granted or denied, including, 5 where appropriate, a statement that access to the record will be deter- 6 mined in accordance with subdivision five of this section; or 7 ii. if an agency determines to grant a request in whole or in part, 8 and if circumstances prevent disclosure to the person requesting the 9 record or records within twenty business days from the date of the 10 acknowledgement of the receipt of the request, the agency shall state, 11 in writing, both the reason for the inability to grant the request with- 12 in twenty business days and a date certain within a reasonable period, 13 depending on the circumstances, when the request will be granted in 14 whole or in part, and advise if exceptions will apply. 15 iii. In the event that the agency determines it cannot grant access to 16 any of the requested record or records: (A) a statement of determination 17 that access to the requested record or records cannot be granted because 18 the request was made to the wrong agency; (B) a statement of determi- 19 nation that access to the requested record or records cannot be granted 20 because the request is too vague; or (C) a statement of determination 21 that access to the requested record or records cannot be granted because 22 the record or records do not exist. 23 (b) Where appropriate, an agency shall make a determination under this 24 subdivision for each category of record in a records request containing 25 more than one records request. 26 (c) An agency shall not deny a request on the basis that the request 27 is voluminous or that locating, generating, or reviewing the requested 28 records or providing the requested copies is burdensome because the 29 agency lacks sufficient staffing or on any other basis if the agency may 30 engage an outside professional service to provide copying, programming 31 or other services required to provide the copy, the costs of which the 32 agency may recover pursuant to paragraph (c) of subdivision one of 33 section eighty-seven of this article. 34 (d) An agency may require a person requesting lists of names of 35 natural persons and residential addresses to provide a written certif- 36 ication that such person will not use such lists of names and addresses 37 for solicitation or fund-raising purposes and will not sell, give or 38 otherwise make available such lists of names and addresses to any other 39 person for the purpose of allowing that person to use such lists of 40 names and addresses for solicitation or fund-raising purposes. [If an41agency determines to grant a request in whole or in part, and if circum-42stances prevent disclosure to the person requesting the record or43records within twenty business days from the date of the acknowledgement44of the receipt of the request, the agency shall state, in writing, both45the reason for the inability to grant the request within twenty business46days and a date certain within a reasonable period, depending on the47circumstances, when the request will be granted in whole or in part.] 48 (e) Upon payment of, or offer to pay, the fee prescribed therefor, the 49 entity shall provide a copy of such record and certify to the correct- 50 ness of such copy if so requested, or as the case may be, shall certify 51 that it does not have possession of such record or that such record 52 cannot be found after diligent search. Nothing in this article shall be 53 construed to require any entity to prepare any record not possessed or 54 maintained by such entity except the records specified in subdivision 55 three of section eighty-seven and subdivision three of section eighty- 56 eight of this article. When an agency has the ability to retrieve orS. 3438 9 1 extract a record or data maintained in a computer storage system with 2 reasonable effort, it shall be required to do so. When doing so requires 3 less employee time than engaging in manual retrieval or redactions from 4 non-electronic records, the agency shall be required to retrieve or 5 extract such record or data electronically. Any programming necessary to 6 retrieve a record maintained in a computer storage system and to trans- 7 fer that record to the medium requested by a person or to allow the 8 transferred record to be read or printed shall not be deemed to be the 9 preparation or creation of a new record. 10 [(b)] (f) All entities shall[, provided such entity has reasonable11means available,] accept requests for records submitted in the form of 12 electronic mail and shall respond to such requests by electronic mail, 13 using forms, to the extent practicable, consistent with the form or 14 forms developed by the committee on open government pursuant to subdivi- 15 sion one of this section and provided that the written requests do not 16 seek a response in some other form. Agencies shall not require requests 17 to be made in any specific format and may not ignore or deny requests 18 not made in the agency's preferred format. 19 [(c)] (g) Each state agency, as defined in subdivision five of this 20 section, that maintains a website shall ensure its website provides for 21 the online submission of a request for records pursuant to this article. 22 (h) All responses to requests shall be attributed to a natural person 23 who is an employee of the responding entity. Responses containing denial 24 of requests, asserting exceptions to disclosure, or asserting that 25 records do not exist, shall be sworn under the penalty of perjury. 26 4. (a) Except as provided in subdivision five of this section, any 27 person denied access to a record may within [thirty] ninety days appeal 28 in writing such denial to the [head, chief executive or governing body29of the entity, or the person therefor designated by such head, chief30executive, or governing body, who shall within ten business days of the31receipt of such appeal fully explain in writing to the person requesting32the record the reasons for further denial, or provide access to the33record sought. In addition, each agency shall immediately forward to the34committee on open government a copy of such appeal when received by the35agency and the ensuing determination thereon] committee on open govern- 36 ment. Failure by an agency to conform to the provisions of subdivision 37 three of this section shall constitute a denial. A written appeal shall 38 include, if available, a copy of the original request for public record 39 or records, and the agency's response, if any. 40 i. Upon receipt of an appeal under this subdivision, the committee on 41 open government shall assign an appeals officer to determine whether the 42 appeal is within the committee's jurisdiction, frivolous or without 43 factual basis, reduce that conclusion to writing and transmit a copy to 44 the requestor and to the responsible records access officer and request 45 a written response from the agency. Upon receipt of a request from the 46 committee on open government an agency shall provide a written response 47 to the appeal within fifteen days after receiving the request for a 48 response; and if the appeal alleges the agency failed to respond to a 49 request within the statutory time, provide a response to the record 50 request; and if the appeal alleges the agency denied a request in 51 violation of this article, provide a copy of the record, a descriptive 52 index of the record, or a written reason why the record is being with- 53 held, as appropriate. 54 ii. The agency or requestor shall provide an affidavit or statement of 55 facts at issue in the appeal within the time provided in a request that 56 the committee on open government may make.S. 3438 10 1 iii. The committee on open government shall maintain the confidential- 2 ity of any record provided under this subdivision. 3 iv. A person or agency may not be civilly or criminally liable for 4 providing a record to the committee on open government under this subdi- 5 vision. 6 v. The provision of a record or a description of a record to the 7 committee on open government under this subdivision may not be construed 8 as a waiver of any applicable privilege. 9 vi. Upon receipt of the agency response and any additional information 10 requested under this subdivision, the committee on open government shall 11 invite the requestor to participate in an informal mediation; and issue 12 a written decision within fifteen days of the date the requestor 13 declines informal mediation or declares the informal mediation termi- 14 nated; or if unable to reach a decision based on the written 15 submissions, schedule an informal conference with the requestor and the 16 agency that may be conducted by teleconference or written testimony 17 submitted by electronic mail, and issue a written decision within 18 fifteen days of the informal conference; or if unable to issue a deci- 19 sion within the times specified in this paragraph and paragraph (b) of 20 this subdivision, state in writing the reason for its inability to issue 21 a decision and issue a decision as soon as possible but not later than 22 sixty days after the filing of the appeal. 23 v. The committee on open government shall send a copy of the written 24 decision to the requestor and the responding agency. 25 (b) An agency may, within the statutory time for acknowledging a 26 records request under this section, submit a written complaint to the 27 committee on open government alleging that a requestor's records request 28 or pattern of records requests is frivolous, vexatious, or made in bad 29 faith. 30 i. Upon receipt of a complaint under this subdivision, the committee 31 on open government shall send a copy of the complaint to the requestor 32 and request a written response that shall be provided within thirty 33 days. 34 ii. The agency or requestor shall provide an affidavit or statement of 35 facts at issue in the complaint within the time provided in a request 36 that the committee on open government may make. 37 iii. Upon receipt of the requestor's response and any additional 38 information requested under this subdivision, the committee on open 39 government shall issue a written decision within thirty days determining 40 whether the requestor's request or patterns of requests is frivolous, 41 vexatious, or made in bad faith. 42 iv. If the committee on open government finds that the requestor's 43 record request is frivolous, vexatious, or made in bad faith based on 44 the totality of the circumstances, including the number and scope of the 45 requestor's past records requests and the agency's responses to those 46 requests and efforts to cooperate with the requestor, it shall issue an 47 order authorizing the agency to ignore the records request; or respond 48 to a less burdensome version of the request within a reasonable time as 49 determined by the committee on open government. 50 v. The committee on open government shall send a copy of the written 51 decision to the requestor and the complaining agency. 52 (c) Except as provided in subdivision five of this section, a person 53 denied access to a record in [an appeal determination] a decision under 54 the provisions of [paragraph] paragraphs (a) and (b) of this subdivision 55 may bring a proceeding for review of such denial pursuant to article 56 seventy-eight of the civil practice law and rules. In the event thatS. 3438 11 1 access to any record is denied pursuant to the provisions of subdivision 2 two of section eighty-seven of this article, the agency involved shall 3 have the burden of proving that such record falls within the provisions 4 of such subdivision two. [Failure by an agency to conform to the5provisions of paragraph (a) of this subdivision shall constitute a6denial.7(c)] (d) The court in such a proceeding: (i) [may] shall assess, 8 against such agency involved, reasonable attorney's fees and other liti- 9 gation costs reasonably incurred by such person in any case under the 10 provisions of this section [in which such person has substantially11prevailed, and] when the agency failed to respond to a request or appeal 12 within the statutory time; [and] (ii) shall assess, against such agency 13 involved, reasonable attorney's fees and other litigation costs reason- 14 ably incurred by such person in any case under the provisions of this 15 section in which such person has substantially prevailed and the court 16 finds that the agency had no reasonable basis for denying access; and 17 (iii) shall assess, against such requestor involved, reasonable attor- 18 ney's fees and other litigation costs reasonably incurred by an agency 19 in any case under the provisions of this section in which the court 20 finds that the requestor's records request or pattern of records 21 requests is frivolous, vexatious, or made in bad faith. 22 [(d)] (e) (i) Appeal to the appellate division of the supreme court 23 must be made in accordance with subdivision (a) of section fifty-five 24 hundred thirteen of the civil practice law and rules. 25 (ii) An appeal from an agency taken from an order of the court requir- 26 ing disclosure of any or all records sought: 27 (A) shall be given preference; 28 (B) shall be brought on for argument on such terms and conditions as 29 the presiding justice may direct, upon application of any party to the 30 proceeding; and 31 (C) shall be deemed abandoned if the agency fails to serve and file a 32 record and brief within sixty days after the date of service upon the 33 petitioner of the notice of appeal, unless consent to further extension 34 is given by all parties, or unless further extension is granted by the 35 court upon such terms as may be just and upon good cause shown. 36 (h) As used in this subdivision the term ["agency" or] "state agency" 37 means [only a state department, board, bureau, division, council or38office and any public corporation the majority of whose members are39appointed by the governor] a board, bureau, division, commission, 40 committee, public authority, public corporation, council, office or 41 other governmental entity performing a governmental or proprietary func- 42 tion for the state, except the judiciary or the state legislature. 43 § 5. This act shall take effect immediately.
