Bill Text: NY A05707 | 2023-2024 | General Assembly | Introduced

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Bill Title: Provides that FOIL appeals are to be heard by the committee on open government.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2024-01-03 - referred to governmental operations [A05707 Detail]

Download: New_York-2023-A05707-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          5707

                               2023-2024 Regular Sessions

                   IN ASSEMBLY

                                     March 22, 2023
                                       ___________

        Introduced  by M. of A. STECK -- read once and referred to the Committee
          on Governmental Operations

        AN ACT to amend the public officers law, in relation to the  hearing  of
          FOIL appeals by the committee on open government

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Subdivision 4 of section 89 of the public officers law,  as
     2  amended  by  chapter 22 of the laws of 2005, paragraph (c) as amended by
     3  chapter 453 of the laws of 2017 and paragraph (d) as  added  by  chapter
     4  487 of the laws of 2016, is amended to read as follows:
     5    4.  (a)  Except  as  provided in subdivision five of this section, any
     6  person denied access to a record may within thirty days appeal in  writ-
     7  ing  such  denial to the [head, chief executive or governing body of the
     8  entity, or the person therefor designated by such head, chief executive,
     9  or governing body,] committee on open government who  shall  within  ten
    10  business  days of the receipt of such appeal fully explain in writing to
    11  the person requesting the record the  reasons  for  further  denial,  or
    12  provide  access  to  the  record sought. [In addition, each agency shall
    13  immediately forward to the committee on open government a copy  of  such
    14  appeal  when received by the agency and the ensuing determination there-
    15  on. Failure by an agency to conform to  the  provisions  of  subdivision
    16  three of this section shall constitute a denial.]
    17    (b)  Except  as provided in subdivision five of this section, a person
    18  denied  access  to  a  record  in  an  appeal  determination  under  the
    19  provisions  of  paragraph (a) of this subdivision may bring a proceeding
    20  for review of such denial pursuant to article seventy-eight of the civil
    21  practice law and rules. In the event that access to any record is denied
    22  pursuant to the provisions of subdivision two of section eighty-seven of
    23  this article, the [agency involved] committee on open  government  shall
    24  have  the burden of proving that such record falls within the provisions
    25  of such subdivision two. Failure by [an agency] the  committee  on  open

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05942-02-3
        A. 5707                             2

     1  government  to conform to the provisions of paragraph (a) of this subdi-
     2  vision shall constitute a denial.
     3    (c) The court in such a proceeding: (i) may assess, against such agen-
     4  cy  involved,  reasonable  attorney's  fees  and  other litigation costs
     5  reasonably incurred by such person in any case under the  provisions  of
     6  this  section in which such person has substantially prevailed, and when
     7  the agency failed to respond to a  request  or  the  committee  on  open
     8  government failed to respond to an appeal within the statutory time; and
     9  (ii)  shall  assess, against such agency involved, reasonable attorney's
    10  fees and other litigation costs reasonably incurred by  such  person  in
    11  any  case  under the provisions of this section in which such person has
    12  substantially prevailed and the court  finds  that  the  agency  had  no
    13  reasonable basis for denying access.
    14    (d)  (i) Appeal to the appellate division of the supreme court must be
    15  made in accordance with subdivision (a) of  section  fifty-five  hundred
    16  thirteen of the civil practice law and rules.
    17    (ii) An appeal from [an agency] the committee on open government taken
    18  from  an  order  of the court requiring disclosure of any or all records
    19  sought:
    20    (A) shall be given preference;
    21    (B) shall be brought on for argument on such terms and  conditions  as
    22  the  presiding  justice may direct, upon application of any party to the
    23  proceeding; and
    24    (C) shall be deemed  abandoned  if  the  [agency]  committee  on  open
    25  government  fails to serve and file a record and brief within sixty days
    26  after the date of service upon the petitioner of the notice  of  appeal,
    27  unless  consent  to further extension is given by all parties, or unless
    28  further extension is granted by the court upon such terms as may be just
    29  and upon good cause shown.
    30    § 2. Subparagraph 1 of paragraph (a) of subdivision 5 of section 89 of
    31  the public officers law, as amended by chapter 403 of the laws of  2003,
    32  is amended to read as follows:
    33    (1)  A  person acting pursuant to law or regulation who, subsequent to
    34  the effective date of this subdivision, submits any information  to  any
    35  state  agency  may,  at  the time of submission, request that the agency
    36  except such information from disclosure under paragraph (d) of  subdivi-
    37  sion  two  of  section  eighty-seven  of this article. Where the request
    38  itself contains information which if disclosed would defeat the  purpose
    39  for  which  the  exception  is  sought,  such  information shall also be
    40  excepted from disclosure under  paragraph  (d)  of  subdivision  two  of
    41  section  eighty-seven of this article. Where the request itself contains
    42  information which if disclosed would defeat the purpose  for  which  the
    43  exception  is  sought,  such  information  shall  also  be excepted from
    44  disclosure.
    45    § 3. Subparagraph 1 of paragraph (c) of subdivision 5 of section 89 of
    46  the public officers law, as added by chapter 890 of the laws of 1981, is
    47  amended to read as follows:
    48    (1) Within seven business days of receipt of  written  notice  denying
    49  the request, the person may file a written appeal from the determination
    50  of  the [agency with the head of the agency, the chief executive officer
    51  or governing body or their designated representatives] committee on open
    52  government.
    53    § 4. This act shall take effect immediately.