S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                          585
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                      (PREFILED)
                                    January 7, 2015
                                      ___________
       Introduced  by Sen. SQUADRON -- 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, the environmental  conservation
         law  and  the  executive  law,  in  relation to freedom of information
         pertaining to legislative documents; and to repeal certain  provisions
         of the public officers law relating thereto
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. The section heading of section 87 of  the  public  officers
    2  law,  as added by chapter 933 of the laws of 1977, is amended to read as
    3  follows:
    4    Access to agency AND STATE LEGISLATIVE records.
    5    S 2. The opening paragraph  of  paragraph  (b)  of  subdivision  1  of
    6  section  87  of the public officers law, as amended by chapter 80 of the
    7  laws of 1983, is amended to read as follows:
    8    Each agency AND HOUSE OF THE STATE LEGISLATURE shall promulgate  rules
    9  and  regulations,  in  conformity with this article and applicable rules
   10  and regulations promulgated pursuant to the provisions of paragraph  (a)
   11  of  this subdivision, and pursuant to such general rules and regulations
   12  as may be promulgated by the committee on open government in  conformity
   13  with  the  provisions of this article, pertaining to the availability of
   14  records and procedures to be followed, including, but not limited to:
   15    S 3. The opening paragraph and  paragraph  (i)  of  subdivision  2  of
   16  section 87 of the public officers law, the opening paragraph as added by
   17  chapter  933 of the laws of 1977 and paragraph (i) as amended by chapter
   18  154 of the laws of 2010, are amended to read as follows:
   19    Each agency AND HOUSE OF THE STATE LEGISLATURE  shall,  in  accordance
   20  with its published rules, make available for public inspection and copy-
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD01001-01-5
       S. 585                              2
    1  ing  all records, except that such agency OR HOUSE OF THE STATE LEGISLA-
    2  TURE may deny access to records or portions thereof that:
    3    (i)  if disclosed, would jeopardize the capacity of an agency OR HOUSE
    4  OF THE STATE LEGISLATURE or an entity that has shared  information  with
    5  an agency OR HOUSE OF THE STATE LEGISLATURE to guarantee the security of
    6  its  information  technology assets, such assets encompassing both elec-
    7  tronic information systems and infrastructures; or
    8    S 4. Paragraph (d) of subdivision 2 of section 87 of the public  offi-
    9  cers  law,  as amended by chapter 289 of the laws of 1990, is amended to
   10  read as follows:
   11    (d) are trade secrets or are submitted  to  an  agency  OR  THE  STATE
   12  LEGISLATURE  by  a  commercial  enterprise  or  derived from information
   13  obtained from a commercial enterprise and which if disclosed would cause
   14  substantial injury to the competitive position  of  the  subject  enter-
   15  prise;
   16    S  5. Subdivision 3 of section 87 of the public officers law, as added
   17  by chapter 933 of the laws of 1977, paragraph (c) as amended by  chapter
   18  499 of the laws of 2008, is amended to read as follows:
   19    3. Each agency OR HOUSE OF THE STATE LEGISLATURE shall maintain:
   20    (a) a record of the final vote of each member in every agency OR HOUSE
   21  proceeding in which the member votes;
   22    (b)  a record setting forth the name, public office address, title and
   23  salary of every officer or employee of the agency OR HOUSE OF THE  STATE
   24  LEGISLATURE; and
   25    (c)  a  reasonably  detailed  current  list  by  subject matter of all
   26  records in the possession of the agency OR HOUSE OF THE  STATE  LEGISLA-
   27  TURE,  whether  or  not  available under this article. Each agency shall
   28  update its subject matter list annually, and the date of the most recent
   29  update shall be conspicuously indicated on the list. Each  state  agency
   30  as  defined in subdivision four of this section that maintains a website
   31  shall post its current list on its website and  such  posting  shall  be
   32  linked  to  the  website  of  the committee on open government. Any such
   33  agency that does not maintain a website shall arrange to have  its  list
   34  posted on the website of the committee on open government.
   35    S  6. Subdivision 4 of section 87 of the public officers law, as added
   36  by chapter 890 of the laws of 1981, paragraph (c) as  added  by  chapter
   37  102 of the laws of 2007, is amended to read as follows:
   38    4.  (a)  Each  state  agency [which] OR HOUSE OF THE STATE LEGISLATURE
   39  THAT maintains records containing trade secrets, to which access may  be
   40  denied  pursuant  to  paragraph  (d) of subdivision two of this section,
   41  shall promulgate regulations OR RULES in conformity with the  provisions
   42  of subdivision five of section eighty-nine of this article pertaining to
   43  such records, including, but not limited to the following:
   44    (1) the manner of identifying the records or parts;
   45    (2)  the  manner  of identifying persons within the agency OR HOUSE OF
   46  THE STATE LEGISLATURE to whose custody the  records  or  parts  will  be
   47  charged  and  for  whose  inspection  and study the records will be made
   48  available;
   49    (3) the manner of safeguarding against any unauthorized access to  the
   50  records.
   51    (b)  As  used  in this subdivision the term "agency" or "state agency"
   52  means [only] EITHER HOUSE OF THE STATE LEGISLATURE, a state  department,
   53  board,  bureau,  division,  council or office and any public corporation
   54  the majority of whose members are appointed by the governor.
   55    (c) Each state agency that maintains a website shall post  information
   56  related  to  this  article  and  article  six-A  of  this chapter on its
       S. 585                              3
    1  website. Such information shall include, at a minimum, contact  informa-
    2  tion  for  the  persons from whom records of the agency may be obtained,
    3  the times and places such records are available for inspection and copy-
    4  ing,  and information on how to request records in person, by mail, and,
    5  if the agency accepts requests for records  electronically,  by  e-mail.
    6  This  posting  shall  be  linked to the website of the committee on open
    7  government.
    8    S 7. Section 88 of the public officers law is REPEALED.
    9    S 8. Paragraph (b) of subdivision 1 of section 89 of the public  offi-
   10  cers  law,  as amended by chapter 182 of the laws of 2006, is amended to
   11  read as follows:
   12    (b) The committee shall:
   13    i. furnish to any agency OR HOUSE OF THE  STATE  LEGISLATURE  advisory
   14  guidelines,  opinions  or  other  appropriate information regarding this
   15  article;
   16    ii. furnish to any  person  advisory  opinions  or  other  appropriate
   17  information regarding this article;
   18    iii.  promulgate rules and regulations with respect to the implementa-
   19  tion of subdivision one  and  paragraph  (c)  of  subdivision  three  of
   20  section eighty-seven of this article;
   21    iv.  request  from  any  agency OR HOUSE OF THE STATE LEGISLATURE such
   22  assistance, services and information as will  enable  the  committee  to
   23  effectively carry out its powers and duties;
   24    v. develop a form, which shall be made available on the internet, that
   25  may be used by the public to request a record; and
   26    vi.  report  on its activities and findings regarding this article and
   27  article seven of this chapter, including recommendations for changes  in
   28  the  law,  to  the  governor  and the legislature annually, on or before
   29  December fifteenth.
   30    S 9. Paragraph (a) of subdivision 2 of section 89 of the public  offi-
   31  cers  law,  as amended by section 11 of part U of chapter 61 of the laws
   32  of 2011, is amended to read as follows:
   33    (a) The committee on public access to records  may  promulgate  guide-
   34  lines  regarding  deletion  of  identifying  details  or  withholding of
   35  records otherwise available under this article  to  prevent  unwarranted
   36  invasions  of  personal  privacy.  In the absence of such guidelines, an
   37  agency OR EACH HOUSE OF THE STATE  LEGISLATURE  may  delete  identifying
   38  details when it makes records available.
   39    S  10.  Subparagraphs  iv  and  v of paragraph (b) of subdivision 2 of
   40  section 89 of the public officers law, as amended by section 11 of  part
   41  U of chapter 61 of the laws of 2011, are amended to read as follows:
   42    iv.  disclosure  of  information  of a personal nature when disclosure
   43  would result in economic or personal hardship to the subject  party  and
   44  such  information is not relevant to the work of the agency [requesting]
   45  or HOUSE OF THE STATE LEGISLATURE maintaining it;
   46    v. disclosure of information of a personal nature reported  in  confi-
   47  dence  to an agency and not relevant to the ordinary work of such agency
   48  OR HOUSE OF THE STATE LEGISLATURE;
   49    S 11. Subdivisions 3, 4 and 5 of section 89  of  the  public  officers
   50  law, subdivision 3 as amended by chapter 223 of the laws of 2008, subdi-
   51  vision  4 as amended by chapter 22 of the laws of 2005, paragraph (c) of
   52  subdivision 4 as amended by chapter 492 of the laws of 2006, subdivision
   53  5 as added by chapter 890 of the laws of 1981, paragraph (a) of subdivi-
   54  sion 5 as amended by chapter 403 of the laws of 2003 and  paragraph  (d)
   55  of  subdivision  5  as  amended  by chapter 339 of the laws of 2004, are
   56  amended to read as follows:
       S. 585                              4
    1    3. (a) Each entity subject to the provisions of this  article,  within
    2  five  business  days  of  the  receipt of a written request for a record
    3  reasonably described, shall make such record  available  to  the  person
    4  requesting  it,  deny  such  request  in  writing  or  furnish a written
    5  acknowledgement  of  the  receipt of such request and a statement of the
    6  approximate date, which shall be reasonable under the  circumstances  of
    7  the  request,  when  such  request will be granted or denied, including,
    8  where appropriate, a statement that access to the record will be  deter-
    9  mined  in  accordance with subdivision five of this section. An [agency]
   10  ENTITY shall not deny a request on the basis that the request is volumi-
   11  nous or that locating or reviewing the requested  records  or  providing
   12  the  requested  copies  is  burdensome because the [agency] ENTITY lacks
   13  sufficient staffing or on any other basis if  the  [agency]  ENTITY  may
   14  engage  an  outside professional service to provide copying, programming
   15  or other services required to provide the copy, the costs of  which  the
   16  [agency] ENTITY may recover pursuant to paragraph (c) of subdivision one
   17  of  section eighty-seven of this article. An [agency] ENTITY may require
   18  a person requesting lists of names and addresses to  provide  a  written
   19  certification  that  such  person  will  not use such lists of names and
   20  addresses for solicitation or fund-raising purposes and will  not  sell,
   21  give  or  otherwise  make available such lists of names and addresses to
   22  any other person for the purpose of allowing that  person  to  use  such
   23  lists  of names and addresses for solicitation or fund-raising purposes.
   24  If an [agency] ENTITY determines to grant a request in whole or in part,
   25  and if circumstances prevent disclosure to  the  person  requesting  the
   26  record  or  records  within  twenty  business  days from the date of the
   27  acknowledgement of the receipt of the request, the [agency] ENTITY shall
   28  state, in writing, both the  reason  for  the  inability  to  grant  the
   29  request  within twenty business days and a date certain within a reason-
   30  able period, depending on the circumstances, when the  request  will  be
   31  granted  in whole or in part.  Upon payment of, or offer to pay, the fee
   32  prescribed therefor, the entity shall provide a copy of such record  and
   33  certify  to the correctness of such copy if so requested, or as the case
   34  may be, shall certify that it does not have possession of such record or
   35  that such record cannot be found after diligent search. Nothing in  this
   36  article  shall  be construed to require any entity to prepare any record
   37  not possessed or maintained by such entity except the records  specified
   38  in  subdivision  three of section eighty-seven [and subdivision three of
   39  section eighty-eight] of this article. When an [agency] ENTITY  has  the
   40  ability to retrieve or extract a record or data maintained in a computer
   41  storage  system  with  reasonable effort, it shall be required to do so.
   42  When doing so requires  less  employee  time  than  engaging  in  manual
   43  retrieval or redactions from non-electronic records, the [agency] ENTITY
   44  shall  be  required to retrieve or extract such record or data electron-
   45  ically. Any programming necessary to retrieve a record maintained  in  a
   46  computer  storage  system  and  to  transfer  that  record to the medium
   47  requested by a person or to allow the transferred record to be  read  or
   48  printed  shall  not be deemed to be the preparation or creation of a new
   49  record.
   50    (b) All entities shall, provided  such  entity  has  reasonable  means
   51  available,  accept  requests  for records submitted in the form of elec-
   52  tronic mail and shall respond to such requests by electronic mail, using
   53  forms, to the extent practicable, consistent  with  the  form  or  forms
   54  developed  by  the  committee on open government pursuant to subdivision
   55  one of this section and provided that the written requests do not seek a
   56  response in some other form.
       S. 585                              5
    1    4. (a) Except as provided in subdivision five  of  this  section,  any
    2  person  denied access to a record may within thirty days appeal in writ-
    3  ing such denial to the head, chief executive or governing  body  of  the
    4  entity, or the person therefor designated by such head, chief executive,
    5  or  governing body, who shall within ten business days of the receipt of
    6  such appeal fully explain in writing to the person requesting the record
    7  the reasons for further denial, or provide access to the record  sought.
    8  In  addition,  each  [agency]  ENTITY  shall  immediately forward to the
    9  committee on open government a copy of such appeal when received by [the
   10  agency] SUCH ENTITY and the ensuing determination thereon. Failure by an
   11  [agency] ENTITY to conform to the provisions  of  subdivision  three  of
   12  this section shall constitute a denial.
   13    (b)  Except  as provided in subdivision five of this section, a person
   14  denied  access  to  a  record  in  an  appeal  determination  under  the
   15  provisions  of  paragraph (a) of this subdivision may bring a proceeding
   16  for review of such denial pursuant to article seventy-eight of the civil
   17  practice law and rules. In the event that access to any record is denied
   18  pursuant to the provisions of subdivision two of section eighty-seven of
   19  this article, the [agency] ENTITY involved  shall  have  the  burden  of
   20  proving that such record falls within the provisions of such subdivision
   21  two. Failure by an [agency] ENTITY to conform to the provisions of para-
   22  graph (a) of this subdivision shall constitute a denial.
   23    (c)  The  court in such a proceeding may assess, against such [agency]
   24  ENTITY involved, reasonable attorney's fees and other  litigation  costs
   25  reasonably  incurred  by such person in any case under the provisions of
   26  this section in which such person has substantially prevailed, when:
   27    i. the [agency] ENTITY had no reasonable basis for denying access; or
   28    ii. the [agency] ENTITY failed to respond to a request or appeal with-
   29  in the statutory time.
   30    5. (a) (1) A person acting pursuant to law or regulation  who,  subse-
   31  quent to the effective date of this subdivision, submits any information
   32  to  any  state agency OR HOUSE OF THE STATE LEGISLATURE may, at the time
   33  of submission, request that the agency OR HOUSE OF THE STATE LEGISLATURE
   34  except such information from disclosure under paragraph (d) of  subdivi-
   35  sion  two  of  section  eighty-seven  of this article. Where the request
   36  itself contains information which if disclosed would defeat the  purpose
   37  for  which  the  exception  is  sought,  such  information shall also be
   38  excepted from disclosure.
   39    (1-a) A person or entity who submits or otherwise makes available  any
   40  records  to  any  agency  OR HOUSE OF THE STATE LEGISLATURE, may, at any
   41  time, identify those records or portions thereof that may contain  crit-
   42  ical infrastructure information, and request that the agency OR HOUSE OF
   43  THE  STATE  LEGISLATURE that maintains such records except such informa-
   44  tion from disclosure under subdivision two of  section  eighty-seven  of
   45  this  article.  Where  the  request itself contains information which if
   46  disclosed would defeat the purpose for which the  exception  is  sought,
   47  such information shall also be excepted from disclosure.
   48    (2)  The  request  for  an exception shall be in writing and state the
   49  reasons why the information should be excepted from disclosure.
   50    (3) Information submitted as provided in subparagraphs one  and  one-a
   51  of  this  paragraph  shall be excepted from disclosure and be maintained
   52  apart by the [agency] ENTITY from all other records until  fifteen  days
   53  after  the  entitlement to such exception has been finally determined or
   54  such further time as ordered by a court of competent jurisdiction.
       S. 585                              6
    1    (b) On the initiative of the [agency] ENTITY at any time, or upon  the
    2  request  of any person for a record excepted from disclosure pursuant to
    3  this subdivision, the agency shall:
    4    (1)  inform  the  person who requested the exception of the [agency's]
    5  ENTITY'S intention to determine whether such exception should be granted
    6  or continued;
    7    (2) permit the person who requested the exception, within ten business
    8  days of receipt of notification from the [agency] ENTITY,  to  submit  a
    9  written  statement  of the necessity for the granting or continuation of
   10  such exception;
   11    (3) within seven business days of receipt of such  written  statement,
   12  or within seven business days of the expiration of the period prescribed
   13  for  submission  of such statement, issue a written determination grant-
   14  ing, continuing or terminating such exception and  stating  the  reasons
   15  therefor;  copies of such determination shall be served upon the person,
   16  if any, requesting the record, the person who requested  the  exception,
   17  and the committee on public access to records.
   18    (c)  A  denial  of an exception from disclosure under paragraph (b) of
   19  this subdivision may be appealed by the person submitting  the  informa-
   20  tion  and a denial of access to the record may be appealed by the person
   21  requesting the record in accordance with this subdivision:
   22    (1) Within seven business days of receipt of  written  notice  denying
   23  the request, the person may file a written appeal from the determination
   24  of  the  [agency] ENTITY with the head of the [agency] ENTITY, the chief
   25  executive officer or governing body or their designated representatives.
   26    (2) The appeal shall be determined within ten  business  days  of  the
   27  receipt  of  the  appeal.  Written  notice of the determination shall be
   28  served upon the person, if any, requesting the record,  the  person  who
   29  requested  the  exception and the committee on public access to records.
   30  The notice shall contain a statement of the  reasons  for  the  determi-
   31  nation.
   32    (d)  A proceeding to review an adverse determination pursuant to para-
   33  graph (c) of this subdivision  may  be  commenced  pursuant  to  article
   34  seventy-eight of the civil practice law and rules. Such proceeding, when
   35  brought  by  a  person  seeking an exception from disclosure pursuant to
   36  this subdivision, must be commenced within fifteen days of  the  service
   37  of  the written notice containing the adverse determination provided for
   38  in subparagraph two of paragraph (c) of this subdivision.
   39    (e) The person requesting an exception  from  disclosure  pursuant  to
   40  this  subdivision  shall  in  all proceedings have the burden of proving
   41  entitlement to the exception.
   42    (f) Where the [agency] ENTITY denies access to a  record  pursuant  to
   43  paragraph  (d)  of subdivision two of section eighty-seven of this arti-
   44  cle, the [agency] ENTITY shall have  the  burden  of  proving  that  the
   45  record falls within the provisions of such exception.
   46    (g)  Nothing in this subdivision shall be construed to deny any person
   47  access, pursuant to the remaining provisions of  this  article,  to  any
   48  record or part excepted from disclosure upon the express written consent
   49  of the person who had requested the exception.
   50    (h)  As used in this subdivision the term ["agency" or "state agency"]
   51  "ENTITY" means [only] EITHER HOUSE OF THE  STATE  LEGISLATURE,  a  state
   52  department,  board,  bureau,  division, council or office and any public
   53  corporation the majority of whose members are appointed by the governor.
   54    S 12. Section 70-0113 of the environmental conservation law, as  added
   55  by chapter 723 of the laws of 1977, is amended to read as follows:
   56  S 70-0113. Confidentiality.
       S. 585                              7
    1    The  provisions  of section [eighty-eight of article six] EIGHTY-SEVEN
    2  of the public officers law shall  apply  to  information  confidentially
    3  disclosed  by applicants to the department, except as otherwise provided
    4  in this chapter.
    5    S 13. Subdivision 3 of section 713 of the executive law, as amended by
    6  section  16  of  part B of chapter 56 of the laws of 2010, is amended to
    7  read as follows:
    8    3. Any reports prepared pursuant to this article shall not be  subject
    9  to  disclosure  pursuant  to  section [eighty-eight] EIGHTY-SEVEN of the
   10  public officers law.
   11    S 14. This act shall take effect immediately.