Relates to requiring a particularized and specific justification for denial of access to records under the freedom of information law, exemption from disclosure under the freedom of information law of certain law enforcement related records and to records identifying victims.
TITLE OF BILL: An act to amend the public officers law, in relation to requiring a particularized and specific justification for denial of access to records under the freedom of information law and exemption from disclosure under the freedom of information law of certain law enforcement related records; and to amend the civil rights law, in relation to records identifying victims
PURPOSE: To clarify certain provisions of FOIL and other disclosure laws to make sure that people are not wrongfully denied access to public records.
SUMMARY OF PROVISIONS: This bill would make changes to the Freedom of Information Law (FOIL) and to section 50-b of the civil rights law. This bill would provide that when an agency is considering denying access to records under the law enforcement exception to FOIL on the grounds that disclosure would interfere with a judicial proceeding, then the decision of whether to grant access would be made by the judge presiding over that judicial proceeding. This bill would clarify that a denial of access to records under FOIL does not prevent a person from obtaining records under any other law. In addition, the bill would clarify that parties to any civil or criminal action or proceeding can use FOIL to obtain records concerning the action or proceeding. Furthermore, this bill clarifies that access to a record cannot be withheld due to the type or category of record. This bill would also amend the law enforcement exception to FOIL to make clear that records cannot be withheld solely because they relate in some manner to an investigation or criminal proceeding. This bill would also amend section 50-b of the civil rights law to clarify that only the portions of a report that would identify a victim of a sexual offense are exempt from disclosure.
JUSTIFICATION: FOIL provides individuals with greater access to their government which helps achieve the goal of an open and transparent government. To that end, there is a strong presumption under FOIL that government records are accessible to the public and there are a number of defined exceptions of access to records. Under current law, access to records or to portions of records is sometimes withheld when it should not be. Too often, records that were prepared in the ordinary course of business, that should be accessible to the public,
have been withheld. This bill would clarify certain provisions of FOIL and section 50-b of the civil rights law to make sure that people are not wrongfully denied access to public records.
LEGISLATIVE HISTORY: New Bill.
FISCAL IMPLICATIONS: None noted.
EFFECTIVE DATE: This act shall take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 7818 IN SENATE 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 a particularized and specific justification for denial of access to records under the freedom of information law and exemption from disclosure under the freedom of information law of certain law enforcement related records; and to amend the civil rights law, in relation to records identifying victims THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 87 of the public officers law is amended by adding a new subdivision 6 to read as follows: 6. WHEN A REQUEST IS MADE FOR AGENCY RECORDS AND THE AGENCY RECEIVING SUCH REQUEST IS CONSIDERING DENYING ACCESS PURSUANT TO SUBPARAGRAPH I OF PARAGRAPH (E) OF SUBDIVISION TWO OF THIS SECTION ON THE GROUNDS THAT DISCLOSURE WOULD INTERFERE WITH A JUDICIAL PROCEEDING, THE AGENCY RECEIVING SUCH REQUEST SHALL PROMPTLY NOTIFY, IN WRITING, THE JUDGE BEFORE WHOM SUCH JUDICIAL PROCEEDING IS PENDING AND THE PERSON MAKING THE REQUEST. SUCH JUDGE SHALL NOTIFY THE PERSON REQUESTING THE RECORD OF ITS RECEIPT, AND OFFER THE PERSON REQUESTING THE RECORD A REASONABLE OPPORTUNITY TO BE HEARD. AFTER DUE DELIBERATION, SUCH JUDGE SHALL DETER- MINE WHETHER ACCESS TO SUCH RECORDS SHOULD BE DENIED PURSUANT TO SUBPAR- AGRAPH I OF PARAGRAPH (E) OF SUBDIVISION TWO OF THIS SECTION AND SHALL SUBMIT SUCH DETERMINATION IN WRITING TO THE AGENCY AND THE PERSON REQUESTING THE RECORD. THE AGENCY SHALL THEN PROCEED AS REQUIRED PURSU- ANT TO THIS ARTICLE, IN ACCORDANCE WITH THE COURT'S DETERMINATION. S 2. Subdivision 6 of section 89 of the public officers law, as added by chapter 933 of the laws of 1977 and as renumbered by chapter 890 of the laws of 1981, is amended to read as follows: 6. Nothing in this article shall be construed to limit or abridge any otherwise available right of access at law or in equity of any party to records. A DENIAL OF ACCESS TO RECORDS OR TO PORTIONS THEREOF PURSUANT TO THIS ARTICLE SHALL NOT LIMIT OR ABRIDGE ANY PARTY'S RIGHT OF ACCESSEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14817-03-2 S. 7818 2
TO SUCH RECORDS PURSUANT TO THE CIVIL PRACTICE LAW AND RULES, THE CRIMI- NAL PROCEDURE LAW, OR ANY OTHER LAW. S 3. Section 89 of the public officers law is amended by adding a new subdivision 10 to read as follows: 10. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO LIMIT A PERSON OR ENTITY THAT IS A PARTY TO ANY CIVIL OR CRIMINAL ACTION OR PROCEEDING FROM GAINING ACCESS TO RECORDS PURSUANT TO THIS ARTICLE RELATING TO SUCH ACTION OR PROCEEDING, PROVIDED, HOWEVER, THAT NOTHING IN THIS SUBDIVI- SION SHALL PREVENT THE DENIAL OF ACCESS TO SUCH RECORDS OR PORTIONS THEREOF AFTER PROVIDING PARTICULARIZED AND SPECIFIC JUSTIFICATION THAT SUCH RECORDS MAY BE WITHHELD PURSUANT TO THIS ARTICLE. S 4. The opening paragraph of subdivision 2 of section 87 of the public officers law, as added by chapter 933 of the laws of 1977, is amended to read as follows: EACH AGENCY SHALL, IN ACCORDANCE WITH ITS PUBLISHED RULES, MAKE AVAIL- ABLE FOR PUBLIC INSPECTION AND COPYING ALL RECORDS, EXCEPT THOSE RECORDS OR PORTIONS THEREOF THAT MAY BE WITHHELD PURSUANT TO THE EXCEPTIONS OF RIGHTS OF ACCESS APPEARING IN THIS SUBDIVISION. A DENIAL OF ACCESS SHALL NOT BE BASED SOLELY ON THE CATEGORY OR TYPE OF SUCH RECORD AND SHALL BE VALID ONLY WHEN THERE IS A PARTICULARIZED AND SPECIFIC JUSTIFICATION FOR SUCH DENIAL. Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that: S 5. Paragraph (e) of subdivision 2 of section 87 of the public offi- cers law, as added by chapter 933 of the laws of 1977, is amended to read as follows: (e) are
[compiled]PREPARED OR CREATED for law enforcement purposes [and which, if disclosed, would]ONLY TO THE EXTENT THAT DISCLOSURE WOULD: i. interfere with law enforcement investigations or judicial proceedings, PROVIDED HOWEVER, THAT ANY AGENCY CONSIDERING DENYING ACCESS PURSUANT TO THIS SUBPARAGRAPH SHALL PROCEED IN ACCORDANCE WITH SUBDIVISION SIX OF THIS SECTION; ii. deprive a person of a right to a fair trial or impartial adjudi- cation; iii. identify a confidential source or disclose confidential informa- tion relating to a criminal investigation; or iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures; S 6. Subdivision 1 of section 50-b of the civil rights law, as amended by chapter 320 of the laws of 2006, is amended to read as follows: 1. The identity of any victim of a sex offense, as defined in article one hundred thirty or section 255.25, 255.26 or 255.27 of the penal law, or of an offense involving the alleged transmission of the human immuno- deficiency virus, shall be confidential. No PORTION OF ANY report, paper, picture, photograph, court file or other documents, in the custo- dy or possession of any public officer or employee, which identifies such a victim shall be made available for public inspection. No such public officer or employee shall disclose any portion of any police report, court file, or other document, which tends to identify such a victim except as provided in subdivision two of this section. S 7. This act shall take effect immediately.