S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  9069

                          I N  A S S E M B L Y

                            January 20, 2012
                               ___________

Introduced by M. of A. KAVANAGH -- read once and referred to the Commit-
  tee on Governmental 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:

  Section  1.  The  section heading of section 87 of the public officers
law, as added by chapter 933 of the laws of 1977, is amended to read  as
follows:
  Access to agency AND STATE LEGISLATIVE records.
  S  2.  The  opening  paragraph  of  paragraph  (b) of subdivision 1 of
section 87 of the public officers law, as amended by chapter 80  of  the
laws of 1983, is amended to read as follows:
  Each  agency AND HOUSE OF THE STATE LEGISLATURE shall promulgate rules
and regulations, in conformity with this article  and  applicable  rules
and  regulations promulgated pursuant to the provisions of paragraph (a)
of this subdivision, and pursuant to such general rules and  regulations
as  may be promulgated by the committee on open government in conformity
with the provisions of this article, pertaining to the  availability  of
records and procedures to be followed, including, but not limited to:
  S  3.  The  opening  paragraph  and  paragraph (i) of subdivision 2 of
section 87 of the public officers law, the opening paragraph as added by
chapter 933 of the laws of 1977 and paragraph (i) as amended by  chapter
154 of the laws of 2010, are amended to read as follows:
  Each  agency  AND  HOUSE OF THE STATE LEGISLATURE shall, in accordance
with its published rules, make available for public inspection and copy-
ing all records, except that such agency OR HOUSE OF THE STATE  LEGISLA-
TURE may deny access to records or portions thereof that:
  (i)  if disclosed, would jeopardize the capacity of an agency OR HOUSE
OF THE STATE LEGISLATURE or an entity that has shared  information  with
an agency OR HOUSE OF THE STATE LEGISLATURE to guarantee the security of

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00172-04-2
              

A. 9069                             2

its  information  technology assets, such assets encompassing both elec-
tronic information systems and infrastructures; or
  S  4. Paragraph (d) of subdivision 2 of section 87 of the public offi-
cers law, as amended by chapter 289 of the laws of 1990, is  amended  to
read as follows:
  (d)  are  trade  secrets  or  are  submitted to an agency OR THE STATE
LEGISLATURE by a  commercial  enterprise  or  derived  from  information
obtained from a commercial enterprise and which if disclosed would cause
substantial  injury  to  the  competitive position of the subject enter-
prise;
  S 5. Subdivision 3 of section 87 of the public officers law, as  added
by  chapter 933 of the laws of 1977, paragraph (c) as amended by chapter
499 of the laws of 2008, is amended to read as follows:
  3. Each agency OR HOUSE OF THE STATE LEGISLATURE shall maintain:
  (a) a record of the final vote of each member in every agency OR HOUSE
proceeding in which the member votes;
  (b) a record setting forth the name, public office address, title  and
salary  of every officer or employee of the agency OR HOUSE OF THE STATE
LEGISLATURE; and
  (c) a reasonably detailed  current  list  by  subject  matter  of  all
records  in  the possession of the agency OR HOUSE OF THE STATE LEGISLA-
TURE, whether or not available under this  article.  Each  agency  shall
update its subject matter list annually, and the date of the most recent
update  shall  be conspicuously indicated on the list. Each state agency
as defined in subdivision four of this section that maintains a  website
shall  post  its  current  list on its website and such posting shall be
linked to the website of the committee  on  open  government.  Any  such
agency  that  does not maintain a website shall arrange to have its list
posted on the website of the committee on open government.
  S 6. Subdivision 4 of section 87 of the public officers law, as  added
by  chapter  890  of the laws of 1981, paragraph (c) as added by chapter
102 of the laws of 2007, is amended to read as follows:
  4. (a) Each state agency [which] OR HOUSE  OF  THE  STATE  LEGISLATURE
THAT  maintains records containing trade secrets, to which access may be
denied pursuant to paragraph (d) of subdivision  two  of  this  section,
shall  promulgate regulations OR RULES in conformity with the provisions
of subdivision five of section eighty-nine of this article pertaining to
such records, including, but not limited to the following:
  (1) the manner of identifying the records or parts;
  (2) the manner of identifying persons within the agency  OR  HOUSE  OF
THE  STATE  LEGISLATURE  to  whose  custody the records or parts will be
charged and for whose inspection and study  the  records  will  be  made
available;
  (3)  the manner of safeguarding against any unauthorized access to the
records.
  (b) As used in this subdivision the term "agency"  or  "state  agency"
means  [only] EITHER HOUSE OF THE STATE LEGISLATURE, a state department,
board, bureau, division, council or office and  any  public  corporation
the majority of whose members are appointed by the governor.
  (c)  Each state agency that maintains a website shall post information
related to this article  and  article  six-A  of  this  chapter  on  its
website.  Such information shall include, at a minimum, contact informa-
tion for the persons from whom records of the agency  may  be  obtained,
the times and places such records are available for inspection and copy-
ing,  and information on how to request records in person, by mail, and,
if the agency accepts requests for records  electronically,  by  e-mail.

A. 9069                             3

This  posting  shall  be  linked to the website of the committee on open
government.
  S 7. Section 88 of the public officers law is REPEALED.
  S  8. Paragraph (b) of subdivision 1 of section 89 of the public offi-
cers law, as amended by chapter 182 of the laws of 2006, is  amended  to
read as follows:
  (b) The committee shall:
  i.  furnish  to  any agency OR HOUSE OF THE STATE LEGISLATURE advisory
guidelines, opinions or other  appropriate  information  regarding  this
article;
  ii.  furnish  to  any  person  advisory  opinions or other appropriate
information regarding this article;
  iii. promulgate rules and regulations with respect to the  implementa-
tion  of  subdivision  one  and  paragraph  (c)  of subdivision three of
section eighty-seven of this article;
  iv. request from any agency OR HOUSE OF  THE  STATE  LEGISLATURE  such
assistance,  services  and  information  as will enable the committee to
effectively carry out its powers and duties;
  v. develop a form, which shall be made available on the internet, that
may be used by the public to request a record; and
  vi. report on its activities and findings regarding this  article  and
article  seven of this chapter, including recommendations for changes in
the law, to the governor and the  legislature  annually,  on  or  before
December fifteenth.
  S  9. Paragraph (a) of subdivision 2 of section 89 of the public offi-
cers law, as amended by section 11 of part U of chapter 61 of  the  laws
of 2011, is amended to read as follows:
  (a)  The  committee  on public access to records may promulgate guide-
lines regarding  deletion  of  identifying  details  or  withholding  of
records  otherwise  available  under this article to prevent unwarranted
invasions of personal privacy. In the absence  of  such  guidelines,  an
agency  OR  EACH  HOUSE  OF THE STATE LEGISLATURE may delete identifying
details when it makes records available.
  S 10. Subparagraphs iv and v of paragraph  (b)  of  subdivision  2  of
section  89 of the public officers law, as amended by section 11 of part
U of chapter 61 of the laws of 2011, are amended to read as follows:
  iv. disclosure of information of a  personal  nature  when  disclosure
would  result  in economic or personal hardship to the subject party and
such information is not relevant to the work of the agency  [requesting]
or HOUSE OF THE STATE LEGISLATURE maintaining it;
  v.  disclosure  of information of a personal nature reported in confi-
dence to an agency and not relevant to the ordinary work of such  agency
OR HOUSE OF THE STATE LEGISLATURE;
  S  11.  Subdivisions  3,  4 and 5 of section 89 of the public officers
law, subdivision 3 as amended by chapter 223 of the laws of 2008, subdi-
vision 4 as amended by chapter 22 of the laws of 2005, paragraph (c)  of
subdivision 4 as amended by chapter 492 of the laws of 2006, subdivision
5 as added by chapter 890 of the laws of 1981, paragraph (a) of subdivi-
sion  5  as amended by chapter 403 of the laws of 2003 and paragraph (d)
of subdivision 5 as amended by chapter 339 of  the  laws  of  2004,  are
amended to read as follows:
  3.  (a)  Each entity subject to the provisions of this article, within
five business days of the receipt of a  written  request  for  a  record
reasonably  described,  shall  make  such record available to the person
requesting it, deny  such  request  in  writing  or  furnish  a  written
acknowledgement  of  the  receipt of such request and a statement of the

A. 9069                             4

approximate date, which shall be reasonable under the  circumstances  of
the  request,  when  such  request will be granted or denied, including,
where appropriate, a statement that access to the record will be  deter-
mined  in  accordance with subdivision five of this section. An [agency]
ENTITY shall not deny a request on the basis that the request is volumi-
nous or that locating or reviewing the requested  records  or  providing
the  requested  copies  is  burdensome because the [agency] ENTITY lacks
sufficient staffing or on any other basis if  the  [agency]  ENTITY  may
engage  an  outside professional service to provide copying, programming
or other services required to provide the copy, the costs of  which  the
[agency] ENTITY may recover pursuant to paragraph (c) of subdivision one
of  section eighty-seven of this article. An [agency] ENTITY may require
a person requesting lists of names and addresses to  provide  a  written
certification  that  such  person  will  not use such lists of names and
addresses for solicitation or fund-raising purposes and will  not  sell,
give  or  otherwise  make available such lists of names and addresses to
any other person for the purpose of allowing that  person  to  use  such
lists  of names and addresses for solicitation or fund-raising purposes.
If an [agency] ENTITY determines to grant a request in whole or in part,
and if circumstances prevent disclosure to  the  person  requesting  the
record  or  records  within  twenty  business  days from the date of the
acknowledgement of the receipt of the request, the [agency] ENTITY shall
state, in writing, both the  reason  for  the  inability  to  grant  the
request  within twenty business days and a date certain within a reason-
able period, depending on the circumstances, when the  request  will  be
granted  in whole or in part.  Upon payment of, or offer to pay, the fee
prescribed therefor, the entity shall provide a copy of such record  and
certify  to the correctness of such copy if so requested, or as the case
may be, shall certify that it does not have possession of such record or
that such record cannot be found after diligent search. Nothing in  this
article  shall  be construed to require any entity to prepare any record
not possessed or maintained by such entity except the records  specified
in  subdivision  three of section eighty-seven [and subdivision three of
section eighty-eight] of this article. When an [agency] ENTITY  has  the
ability to retrieve or extract a record or data maintained in a computer
storage  system  with  reasonable effort, it shall be required to do so.
When doing so requires  less  employee  time  than  engaging  in  manual
retrieval or redactions from non-electronic records, the [agency] ENTITY
shall  be  required to retrieve or extract such record or data electron-
ically. Any programming necessary to retrieve a record maintained  in  a
computer  storage  system  and  to  transfer  that  record to the medium
requested by a person or to allow the transferred record to be  read  or
printed  shall  not be deemed to be the preparation or creation of a new
record.
  (b) All entities shall, provided  such  entity  has  reasonable  means
available,  accept  requests  for records submitted in the form of elec-
tronic mail and shall respond to such requests by electronic mail, using
forms, to the extent practicable, consistent  with  the  form  or  forms
developed  by  the  committee on open government pursuant to subdivision
one of this section and provided that the written requests do not seek a
response in some other form.
  4. (a) Except as provided in subdivision five  of  this  section,  any
person  denied access to a record may within thirty days appeal in writ-
ing such denial to the head, chief executive or governing  body  of  the
entity, or the person therefor designated by such head, chief executive,
or  governing body, who shall within ten business days of the receipt of

A. 9069                             5

such appeal fully explain in writing to the person requesting the record
the reasons for further denial, or provide access to the record  sought.
In  addition,  each  [agency]  ENTITY  shall  immediately forward to the
committee on open government a copy of such appeal when received by [the
agency] SUCH ENTITY and the ensuing determination thereon. Failure by an
[agency]  ENTITY  to  conform  to the provisions of subdivision three of
this section shall constitute a denial.
  (b) Except as provided in subdivision five of this section,  a  person
denied  access  to  a  record  in  an  appeal  determination  under  the
provisions of paragraph (a) of this subdivision may bring  a  proceeding
for review of such denial pursuant to article seventy-eight of the civil
practice law and rules. In the event that access to any record is denied
pursuant to the provisions of subdivision two of section eighty-seven of
this  article,  the  [agency]  ENTITY  involved shall have the burden of
proving that such record falls within the provisions of such subdivision
two. Failure by an [agency] ENTITY to conform to the provisions of para-
graph (a) of this subdivision shall constitute a denial.
  (c) The court in such a proceeding may assess, against  such  [agency]
ENTITY  involved,  reasonable attorney's fees and other litigation costs
reasonably incurred by such person in any case under the  provisions  of
this section in which such person has substantially prevailed, when:
  i. the [agency] ENTITY had no reasonable basis for denying access; or
  ii. the [agency] ENTITY failed to respond to a request or appeal with-
in the statutory time.
  5.  (a)  (1) A person acting pursuant to law or regulation who, subse-
quent to the effective date of this subdivision, submits any information
to any state agency OR HOUSE OF THE STATE LEGISLATURE may, at  the  time
of submission, request that the agency OR HOUSE OF THE STATE LEGISLATURE
except  such information from disclosure under paragraph (d) of subdivi-
sion two of section eighty-seven of  this  article.  Where  the  request
itself  contains information which if disclosed would defeat the purpose
for which the exception  is  sought,  such  information  shall  also  be
excepted from disclosure.
  (1-a)  A person or entity who submits or otherwise makes available any
records to any agency OR HOUSE OF THE STATE  LEGISLATURE,  may,  at  any
time,  identify those records or portions thereof that may contain crit-
ical infrastructure information, and request that the agency OR HOUSE OF
THE STATE LEGISLATURE that maintains such records except  such  informa-
tion  from  disclosure  under subdivision two of section eighty-seven of
this article. Where the request itself  contains  information  which  if
disclosed  would  defeat  the purpose for which the exception is sought,
such information shall also be excepted from disclosure.
  (2) The request for an exception shall be in  writing  and  state  the
reasons why the information should be excepted from disclosure.
  (3)  Information  submitted as provided in subparagraphs one and one-a
of this paragraph shall be excepted from disclosure  and  be  maintained
apart  by  the [agency] ENTITY from all other records until fifteen days
after the entitlement to such exception has been finally  determined  or
such further time as ordered by a court of competent jurisdiction.
  (b)  On the initiative of the [agency] ENTITY at any time, or upon the
request of any person for a record excepted from disclosure pursuant  to
this subdivision, the agency shall:
  (1)  inform  the  person who requested the exception of the [agency's]
ENTITY'S intention to determine whether such exception should be granted
or continued;

A. 9069                             6

  (2) permit the person who requested the exception, within ten business
days of receipt of notification from the [agency] ENTITY,  to  submit  a
written  statement  of the necessity for the granting or continuation of
such exception;
  (3)  within  seven business days of receipt of such written statement,
or within seven business days of the expiration of the period prescribed
for submission of such statement, issue a written  determination  grant-
ing,  continuing  or  terminating such exception and stating the reasons
therefor; copies of such determination shall be served upon the  person,
if  any,  requesting the record, the person who requested the exception,
and the committee on public access to records.
  (c) A denial of an exception from disclosure under  paragraph  (b)  of
this  subdivision  may be appealed by the person submitting the informa-
tion and a denial of access to the record may be appealed by the  person
requesting the record in accordance with this subdivision:
  (1)  Within  seven  business days of receipt of written notice denying
the request, the person may file a written appeal from the determination
of the [agency] ENTITY with the head of the [agency] ENTITY,  the  chief
executive officer or governing body or their designated representatives.
  (2)  The  appeal  shall  be determined within ten business days of the
receipt of the appeal. Written notice  of  the  determination  shall  be
served  upon  the  person, if any, requesting the record, the person who
requested the exception and the committee on public access  to  records.
The  notice  shall  contain  a statement of the reasons for the determi-
nation.
  (d) A proceeding to review an adverse determination pursuant to  para-
graph  (c)  of  this  subdivision  may  be commenced pursuant to article
seventy-eight of the civil practice law and rules. Such proceeding, when
brought by a person seeking an exception  from  disclosure  pursuant  to
this  subdivision,  must be commenced within fifteen days of the service
of the written notice containing the adverse determination provided  for
in subparagraph two of paragraph (c) of this subdivision.
  (e)  The  person  requesting  an exception from disclosure pursuant to
this subdivision shall in all proceedings have  the  burden  of  proving
entitlement to the exception.
  (f)  Where  the  [agency] ENTITY denies access to a record pursuant to
paragraph (d) of subdivision two of section eighty-seven of  this  arti-
cle,  the  [agency]  ENTITY  shall  have  the burden of proving that the
record falls within the provisions of such exception.
  (g) Nothing in this subdivision shall be construed to deny any  person
access,  pursuant  to  the  remaining provisions of this article, to any
record or part excepted from disclosure upon the express written consent
of the person who had requested the exception.
  (h) As used in this subdivision the term ["agency" or "state  agency"]
"ENTITY"  means  [only]  EITHER  HOUSE OF THE STATE LEGISLATURE, a state
department, board, bureau, division, council or office  and  any  public
corporation the majority of whose members are appointed by the governor.
  S  12. Section 70-0113 of the environmental conservation law, as added
by chapter 723 of the laws of 1977, is amended to read as follows:
S 70-0113. Confidentiality.
  The provisions of section [eighty-eight of article  six]  EIGHTY-SEVEN
of  the  public  officers  law shall apply to information confidentially
disclosed by applicants to the department, except as otherwise  provided
in this chapter.

A. 9069                             7

  S 13. Subdivision 3 of section 713 of the executive law, as amended by
section  16  of  part B of chapter 56 of the laws of 2010, is amended to
read as follows:
  3.  Any reports prepared pursuant to this article shall not be subject
to disclosure pursuant to section  [eighty-eight]  EIGHTY-SEVEN  of  the
public officers law.
  S 14. This act shall take effect immediately.