S T A T E O F N E W Y O R K
I N S E N A T E
June 25, 2012
Introduced by Sen. MARCELLINO -- read twice and ordered printed, and
when printed to be committed to the Committee on Rules
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, paragraph (d) as amended by chapter 339
4 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.
21 (2) (I) The request for an exception shall be in writing, SHALL
22 SPECIFICALLY IDENTIFY WHICH PORTIONS OF THE RECORD ARE THE SUBJECT OF
23 THE REQUEST FOR EXCEPTION and state the reasons why the information
24 should be excepted, FOR A DEFINED PERIOD OF TIME, from disclosure. THE
25 SUBMITTER MAY ALSO PROVIDE A DATE BY WHICH SUCH EXCEPTION SHALL EXPIRE,
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
S. 7816 2
1 PROVIDED THAT SUCH DATE SHALL NOT EXCEED THREE YEARS FROM THE TIME OF
2 THE AGENCY'S RECEIPT OF THE REQUEST FOR AN EXCEPTION.
3 (II) NOT LESS THAN SIXTY DAYS PRIOR TO THE EXPIRATION OF THE THEN
4 CURRENT TERM OF THE EXCEPTION REQUEST, THE SUBMITTER MAY APPLY TO THE
5 AGENCY FOR A THREE-YEAR EXTENSION OF ITS EXCEPTION REQUEST. UPON TIMELY
6 RECEIPT OF A REQUEST FOR AN EXTENSION OF AN EXCEPTION REQUEST, AN AGENCY
7 SHALL REVIEW THE APPLICATION AND EITHER GRANT OR DENY THE EXTENSION
8 REQUEST. A DENIAL OF AN EXTENSION REQUEST MAY BE APPEALED BY THE SUBMIT-
9 TER PURSUANT TO PARAGRAPH (C) OF THIS SUBDIVISION. IF THE SUBMITTER
10 FAILS TO APPLY FOR AN EXTENSION, THE EXCEPTION SHALL BE CONSIDERED TO
11 HAVE EXPIRED.
12 (3) Information submitted SUBSEQUENT TO THE EFFECTIVE DATE OF THE
13 CHAPTER OF THE LAWS OF TWO THOUSAND ELEVEN AMENDING THIS SUBDIVISION AND
14 as provided in subparagraphs one and one-a of this paragraph shall be
15 excepted from disclosure FOR A DEFINED PERIOD OF TIME and be maintained
16 apart by the agency from all other records until THE EXPIRATION OF THE
17 SUBMITTER'S EXCEPTION REQUEST OR fifteen days after the entitlement to
18 such exception has been finally determined or such further time as
19 ordered by a court of competent jurisdiction.
20 (b) [
On] DURING THE EFFECTIVE PERIOD OF AN EXCEPTION REQUEST UNDER
21 THIS SUBDIVISION, ON the initiative of the agency at any time, or upon
22 the request of any person for a record excepted from disclosure pursuant
23 to this subdivision, the agency shall:
24 (1) inform the person who requested the exception of the agency's
25 intention to determine whether such exception should be granted or
27 (2) permit the person who requested the exception, within ten business
28 days of receipt of notification from the agency, to submit a written
29 statement of the necessity for the granting or continuation of such
31 (3) within seven business days of receipt of such written statement,
32 or within seven business days of the expiration of the period prescribed
33 for submission of such statement, issue a written determination grant-
34 ing, continuing or terminating such exception and stating the reasons
35 therefor; copies of such determination shall be served upon the person,
36 if any, requesting the record, the person who requested the exception,
37 and the committee on [ public access to records] OPEN GOVERNMENT.
38 (c) A denial of an exception from disclosure under paragraph (b) of
39 this subdivision may be appealed by the person submitting the informa-
40 tion and a denial of access to the record may be appealed by the person
41 requesting the record in accordance with this subdivision:
42 (1) Within seven business days of receipt of written notice denying
43 the request, the person may file a written appeal from the determination
44 of the agency with the head of the agency, the chief executive officer
45 or governing body or their designated representatives.
46 (2) The appeal shall be determined within ten business days of the
47 receipt of the appeal. Written notice of the determination shall be
48 served upon the person, if any, requesting the record, the person who
49 requested the exception and the committee on [ public access to records]
50 OPEN GOVERNMENT. The notice shall contain a statement of the reasons
51 for the determination.
52 (d) A proceeding to review an adverse determination pursuant to para-
53 graph (c) of this subdivision may be commenced pursuant to article
54 seventy-eight of the civil practice law and rules. Such proceeding, when
55 brought by a person seeking an exception from disclosure pursuant to
56 this subdivision, must be commenced within fifteen days of the service
S. 7816 3
1 of the written notice containing the adverse determination provided for
2 in subparagraph two of paragraph (c) of this subdivision.
3 (e) The person requesting an exception from disclosure pursuant to
4 this subdivision shall in all proceedings have the burden of proving
5 entitlement to the exception.
6 (f) Where the agency denies access to a record pursuant to paragraph
7 [ (d) of] (B) OF THIS SUBDIVISION IN CONJUNCTION WITH subdivision two of
8 section eighty-seven of this article, the agency shall have the burden
9 of proving that the record falls within the provisions of such excep-
11 (g) Nothing in this subdivision shall be construed to deny any person
12 access, pursuant to the remaining provisions of this article, to any
13 record or part excepted from disclosure upon the express written consent
14 of the person who had requested the exception.
15 (h) As used in this subdivision the term "agency" or "state agency"
16 means only a state department, board, bureau, division, council or
17 office and any public corporation the majority of whose members are
18 appointed by the governor.
19 S 2. This act shall take effect immediately.