Bill Text: NY S00387 | 2025-2026 | General Assembly | Introduced


Bill Title: Requires governmental and certain nongovernmental entities to publish public records proactively on the internet that are of public interest.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2025-01-08 - REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS [S00387 Detail]

Download: New_York-2025-S00387-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                           387

                               2025-2026 Regular Sessions

                    IN SENATE

                                       (Prefiled)

                                     January 8, 2025
                                       ___________

        Introduced  by  Sen. SKOUFIS -- 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, in relation to  making  certain
          public records available on the internet

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

     1    Section 1. Section 84 of the public officers law, as added by  chapter
     2  933 of the laws of 1977, is amended to read as follows:
     3    § 84. Legislative  declaration.  The  legislature  hereby finds that a
     4  free society is maintained when government is responsive and responsible
     5  to the public, and when the public is aware of governmental actions. The
     6  more open a government is with its citizenry,  the  greater  the  under-
     7  standing  and  participation  of the public in government. People have a
     8  right to know how government operates and spends money.
     9    As state and local government services increase  and  public  problems
    10  become more sophisticated and complex and therefore harder to solve, and
    11  with  the  resultant increase in revenues and expenditures, it is incum-
    12  bent upon the state and its localities to extend  public  accountability
    13  wherever and whenever feasible.
    14    The people's right to know the process of governmental decision-making
    15  and  to review the documents and statistics leading to determinations is
    16  basic to our society. Access to such information should not be  thwarted
    17  by shrouding it with the cloak of secrecy or confidentiality.
    18    Since  the  Freedom  of Information Law was first adopted, advances in
    19  technology have enhanced the  ability  to  gain  access  to  and  widely
    20  disseminate  public information. Accordingly, the legislature finds that
    21  government agencies, when agencies have the ability  to  do  so,  should
    22  publish  public  records  proactively on the internet that are of public
    23  interest and available under this article.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01427-01-5

        S. 387                              2

     1    The legislature therefore declares that  government  is  the  public's
     2  business  and that the public, individually and collectively and repres-
     3  ented by a free press, should have access to the records  of  government
     4  in accordance with the provisions of this article.
     5    § 2. Subdivisions 3 and 4 of section 86 of the public officers law, as
     6  added by chapter 933 of the laws of 1977, are amended and two new subdi-
     7  visions 12 and 13 are added to read as follows:
     8    3.  "Agency"  excludes  the judiciary and state legislature, and means
     9  any state or municipal department, school district, board, bureau, divi-
    10  sion, commission, committee, public authority, public corporation, coun-
    11  cil, office or other governmental entity performing  a  governmental  or
    12  proprietary  function  for  the  state or any one or more municipalities
    13  thereof, [except the judiciary or the state legislature]  or  any  other
    14  body, by whatever name, acting on behalf of government which, considered
    15  in  its  totality, is functionally equivalent to an agency as defined in
    16  this subdivision because it substantially possesses any of the following
    17  features and functions:
    18    (a) The body performs a governmental or proprietary function  for  the
    19  state or municipality;
    20    (b) The body's members have authority to make decisions or recommenda-
    21  tions on policy and administration affecting the conduct of the business
    22  of the people in the governmental sector;
    23    (c)  The body was created by a governmental or governmental-affiliated
    24  entity or the body's origin and authority may be traced to  governmental
    25  action;
    26    (d)  The body is controlled by, overseen or operationally managed by a
    27  governmental or governmental-affiliated entity;
    28    (e) The body receives substantial government financial or nonfinancial
    29  support;
    30    (f) The body's officers and employees  are  public  employees  or  are
    31  nominated or appointed by public employees; or
    32    (g) The body was previously determined to be open to public access.
    33    4.  "Record"  means  any  [information  kept, held, filed, produced or
    34  reproduced by, with or for an agency or the state  legislature,  in  any
    35  physical  form whatsoever including, but not limited to, reports, state-
    36  ments, examinations, memoranda, opinions, folders, files,  books,  manu-
    37  als, pamphlets, forms, papers, designs, drawings, maps, photos, letters,
    38  microfilms,  computer tapes or discs, rules, regulations or codes] docu-
    39  ments or electronically stored information, including but not limited to
    40  any writing, drawing, graph, chart, photograph, sound  recording,  video
    41  recording,  image,  and  other  data  or data compilation, stored in any
    42  medium from which information can be obtained  either  directly  or,  if
    43  necessary,  after  translation  by  the  agency into a reasonably usable
    44  form.
    45    12. "Publishable state data" means data collected by  a  state  agency
    46  that  the agency is permitted, required or able to make available to the
    47  public, consistent with any and all applicable laws, rules, regulations,
    48  ordinances, resolutions, policies or other restrictions, requirements or
    49  rights associated with the state data,  including  but  not  limited  to
    50  contractual  or  other  legal orders, restrictions or requirements. Data
    51  shall not be publishable state data if making such data available  on  a
    52  website  would  violate statute or regulation, including disclosure that
    53  would constitute an unwarranted invasion of personal  privacy,  endanger
    54  the  public  health,  safety or welfare, hinder the operation of govern-
    55  ment, including criminal and civil investigations, or  impose  an  undue

        S. 387                              3

     1  financial,  operational  or administrative burden on the state agency or
     2  state.
     3    13.  "Business  days"  and  "days"  shall  be  calculated from date of
     4  submission, if electronic, or else postmark date.
     5    § 3. Paragraphs (a) and (b) of subdivision 1, paragraphs (c), (d), (e)
     6  and (g) of subdivision 2, paragraph (c) of subdivision 3 and  paragraphs
     7  (b)  and  (c) of subdivision 4 of section 87 of the public officers law,
     8  paragraph (a) and the opening paragraph of paragraph (b) of  subdivision
     9  1  as amended by chapter 80 of the laws of 1983, paragraph (b) of subdi-
    10  vision 1 and paragraph (c) of subdivision 2 as added by chapter  933  of
    11  the  laws of 1977, subparagraph iii of paragraph (b) of subdivision 1 as
    12  amended by chapter 7 of the laws of 2023, paragraph (d) of subdivision 2
    13  as amended by chapter 289 of the laws of 1990, paragraph (e) of subdivi-
    14  sion 2 as amended by chapter 155 of the laws of 2022, paragraph  (g)  of
    15  subdivision  2  as amended by chapter 510 of the laws of 1999, paragraph
    16  (c) of subdivision 3 as amended by chapter 499  of  the  laws  of  2008,
    17  paragraph  (b)  of  subdivision 4 as added by chapter 890 of the laws of
    18  1981 and paragraph (c) of subdivision 4 as added by chapter 102  of  the
    19  laws  of  2007,  are amended and a new subdivision 7 is added to read as
    20  follows:
    21    (a) [Within sixty days after the effective date of this  article,  the
    22  governing body of each public corporation shall promulgate uniform rules
    23  and  regulations for all agencies in such public corporation pursuant to
    24  such general rules and regulations as may be  promulgated  by  the]  The
    25  committee  on  open  government shall promulgate general rules and regu-
    26  lations in conformity with the provisions of this article, pertaining to
    27  the administration of this article.
    28    (b) Each agency shall [promulgate rules and regulations, in conformity
    29  with this article  and  applicable  rules  and  regulations  promulgated
    30  pursuant  to] adopt the provisions of paragraph (a) of this subdivision,
    31  and pursuant to such general rules  and  regulations  as  [may  be]  are
    32  promulgated  by the committee on open government in [conformity with the
    33  provisions of this article, pertaining to the  availability  of  records
    34  and  procedures  to be followed] accordance with the provisions of para-
    35  graph (a) of this subdivision, shall  promulgate  agency-specific  rules
    36  and  regulations  in  conformity  with  the  provisions of this article,
    37  including, but not limited to:
    38    i. the times and places [such] agency records are available;
    39    ii. the persons from whom such records may be obtained[,]; and
    40    iii. except when a different fee is otherwise prescribed by statute:
    41    (1) the fees for paper copies of records shall not exceed  twenty-five
    42  cents  per photocopy not in excess of nine inches by fourteen inches, or
    43  the actual cost of reproducing any other record in accordance  with  the
    44  provisions of paragraph (c) of this subdivision.
    45    (2)  In  the  case  where  an identical record has been prepared for a
    46  previous request within the past 6 months  and  an  electronic  copy  is
    47  available, an agency shall not charge a fee for the reproduction of such
    48  record,  except  for the actual cost of a storage device or media if one
    49  is provided to the requester in complying with such request.
    50    (c) if disclosed would impair present or imminent contract  awards  or
    51  collective bargaining negotiations;
    52    (d)  are  trade  secrets or are submitted to an agency by a commercial
    53  enterprise or derived from information obtained from a commercial enter-
    54  prise under compulsion of law or regulation and which if disclosed would
    55  cause substantial injury to the  competitive  position  of  the  subject
    56  enterprise;

        S. 387                              4

     1    (e)  are  compiled  for such agency's law enforcement purposes only to
     2  the extent that disclosure would:
     3    i.  interfere  with  such  agency's  law enforcement investigations or
     4  judicial proceedings, provided however, that any agency,  which  is  not
     5  conducting  the investigation that the requested records relate to, that
     6  is considering  denying  access  pursuant  to  this  subparagraph  shall
     7  receive  confirmation  from  the law enforcement or investigating agency
     8  conducting the investigation that disclosure of such records will inter-
     9  fere with an ongoing investigation;
    10    ii. deprive a person of a right to a fair trial or  impartial  adjudi-
    11  cation;
    12    iii.  identify a confidential source or disclose confidential informa-
    13  tion relating to a criminal investigation; or
    14    iv. reveal criminal investigative  techniques  or  procedures,  except
    15  routine techniques and procedures;
    16    (g) are inter-agency or intra-agency deliberative materials, including
    17  recommendations,  proposals, suggestions, and other subjective documents
    18  reflecting the personal opinions of the writer or  writers  rather  than
    19  the policy of the agency, which are not:
    20    i. statistical or factual tabulations or data;
    21    ii. instructions to staff that affect the public;
    22    iii. final agency policy or determinations;
    23    iv.  external audits, including but not limited to audits performed by
    24  the comptroller and the federal government; or
    25    (c) a reasonably detailed  current  list  by  subject  matter  of  all
    26  records  in the possession of the agency, whether or not available under
    27  this article. Each agency shall update its subject matter list annually,
    28  and the date of the most recent update shall be conspicuously  indicated
    29  on  the  list.  Each state agency as defined in subdivision four of this
    30  section [that maintains a website] shall post its current  list  on  its
    31  website and such posting shall be linked to the website of the committee
    32  on  open  government.  [Any such agency that does not maintain a website
    33  shall arrange to have its list posted on the website of the committee on
    34  open government.]
    35    (b) As used in this subdivision the term "agency"  or  "state  agency"
    36  means  [only  a  state  department,  board, bureau, division, council or
    37  office and any public corporation the  majority  of  whose  members  are
    38  appointed  by  the  governor]  a  board,  bureau,  division, commission,
    39  committee, public authority,  public  corporation,  council,  office  or
    40  other governmental entity performing a governmental or proprietary func-
    41  tion for the state, except the judiciary or the state legislature.
    42    (c)  Each  state  agency  [that  maintains]  shall  maintain a website
    43  [shall] and post information related to this article and  article  six-A
    44  of  this  chapter  on  its website. Such information shall include, at a
    45  minimum, contact information for the persons from whom  records  of  the
    46  agency  may be obtained, the times and places such records are available
    47  for inspection and copying, and information on how to request records in
    48  person, by mail, and[, if the agency accepts requests for records  elec-
    49  tronically,]  by  e-mail. This posting shall be linked to the website of
    50  the committee on open government.
    51    (d) Every state agency shall make its publishable state data available
    52  on the agency's website or  to  the  office  of  information  technology
    53  services to be available on the state's open data website.
    54    (e) Every agency shall make available on its website's homepage a link
    55  to that agency's current fiscal year budget.

        S. 387                              5

     1    7.  Whenever  there is a question as to whether or not a record should
     2  be disclosed, it shall be presumed that the requestor is entitled to the
     3  record.
     4    §  4. Subdivision 1, paragraphs (a) and (b) of subdivision 2, subdivi-
     5  sions 3 and 4 and paragraph (h) of subdivision 5 of section  89  of  the
     6  public  officers  law, subdivision 1 as added by chapter 933 of the laws
     7  of 1977, paragraph (a) of subdivision 1 as amended by chapter 33 of  the
     8  laws  of  1984, paragraph (b) of subdivision 1 as amended by chapter 182
     9  of the laws of 2006, paragraph  (a)  of  subdivision  2  as  amended  by
    10  section 11 of part U of chapter 61 of the laws of 2011, paragraph (b) of
    11  subdivision  2  as amended by section 2 of part GGG of chapter 59 of the
    12  laws of 2019, subdivision 3 as amended by chapter 223  of  the  laws  of
    13  2008,  paragraph (c) of subdivision 3 as added by chapter 47 of the laws
    14  of 2018, subdivision 4 as amended by chapter 22 of  the  laws  of  2005,
    15  paragraph  (c) of subdivision 4 as amended by chapter 453 of the laws of
    16  2017, paragraph (d) of subdivision 4 as added by chapter 487 of the laws
    17  of 2016 and paragraph (h) of subdivision 5 as added by  chapter  890  of
    18  the laws of 1981, are amended to read as follows:
    19    1.  (a)  i.  The  committee  on open government is continued and shall
    20  consist of [the lieutenant governor or the delegate of such officer, the
    21  secretary of state or the delegate of such officer, whose  office  shall
    22  act  as secretariat for the committee, the commissioner of the office of
    23  general services or the delegate of such officer, the  director  of  the
    24  budget or the delegate of such officer, and] seven [other] persons, none
    25  of  whom  shall  hold  any other state or local public office except the
    26  representative of local governments as set forth herein, to be appointed
    27  as follows: [five by the governor, at least two of whom are or have been
    28  representatives of the news media, one of whom shall be a representative
    29  of local government who, at the time of appointment,  is  serving  as  a
    30  duly  elected officer of a local government, one by the temporary presi-
    31  dent of the senate, and one by the speaker of the assembly. The  persons
    32  appointed  by  the  temporary president of the senate and the speaker of
    33  the assembly shall be appointed to serve, respectively, until the  expi-
    34  ration of the terms of office of the temporary president and the speaker
    35  to  which  the  temporary  president  and speaker were elected. The four
    36  persons presently serving by appointment of the governor for fixed terms
    37  shall continue to serve until the expiration of their respective  terms.
    38  Thereafter,  their respective successors shall be appointed for terms of
    39  four years. The member representing local government shall be  appointed
    40  for  a  term  of  four years, so long as such member shall remain a duly
    41  elected officer of a local government.]  two  representatives,  each  of
    42  whom  is  from  the news media or a nongovernmental nonprofit group that
    43  works on issues related to transparency or open government, two   repre-
    44  sentatives  of  local  government  who,  at the time of appointment, are
    45  serving as duly elected  officers  of  a  local  government,  and  three
    46  private  citizens of the state, none of whom may be custodians of public
    47  records, members of the news media or a nonprofit group  that  works  on
    48  issues  related to transparency or open government, or a staff member or
    49  spokesperson for an organization that represents  custodians  or  reque-
    50  stors  of  public  records. Of the seven members,  at least two shall be
    51  attorneys admitted to practice in  New  York  and  at  least  two  shall
    52  possess  expertise  concerning  electronic records, including electronic
    53  storage, retrieval, review, and reproduction technologies.
    54    ii. Members of the committee shall be appointed from a pool of  appli-
    55  cants  identified  by the governor and the governor shall publish on the
    56  governor's website notice of the governor's intent  to  consider  appli-

        S. 387                              6

     1  cants  for  positions on the committee on open government and the notice
     2  shall include the application procedures, criteria for evaluating appli-
     3  cants' qualifications, and procedures for  resolving  any  conflicts  of
     4  interest;  and  solicit recommendations for committee members from agen-
     5  cies, news media, and nongovernmental  nonprofit  groups  that  work  on
     6  issues  related  to  transparency or open government; and post names and
     7  qualifications of applicants on the governor's website; and when  evalu-
     8  ating an applicant, consider the need for geographic, political, racial,
     9  ethnic,  cultural,  and gender diversity on the committee and ensure the
    10  neutrality of the committee.
    11    iii. Subject to the advice and consent of  the  senate,  the  governor
    12  shall  appoint  the members of the committee from the pool of applicants
    13  created pursuant to this section.
    14    iv. The committee shall [hold no less than two meetings annually] meet
    15  at least monthly, but may meet at any time.
    16    v. The members of the committee shall be entitled to reimbursement for
    17  actual expenses incurred in the discharge of their duties.
    18    (b) The committee shall:
    19    i. [furnish to any  agency  advisory  guidelines,  opinions  or  other
    20  appropriate  information regarding this article] issue advisory opinions
    21  to any agency or person which shall be made available on the committee's
    22  website;
    23    ii. [furnish to any person  advisory  opinions  or  other  appropriate
    24  information regarding this article] provide annual training to agencies,
    25  public  officials and public employees on articles six and seven of this
    26  chapter;
    27    iii. promulgate rules and regulations [with respect to the implementa-
    28  tion of subdivision one  and  paragraph  (c)  of  subdivision  three  of
    29  section  eighty-seven] to carry out the provisions of this article which
    30  shall be made available on the committee's website;
    31    iv. [request from any agency such assistance, services and information
    32  as will enable the committee to effectively carry  out  its  powers  and
    33  duties]  assign appeals officers to review appeals of decisions by agen-
    34  cies and issue orders  and  opinions.  The  committee  shall  employ  or
    35  contract  with  attorneys to serve as appeals officers to review appeals
    36  and, if necessary, to hold hearings on a regional basis under this arti-
    37  cle. Each appeals officer must comply with all  of  the  following:  (A)
    38  complete  a training course provided by the committee prior to acting as
    39  an appeals officer;  (B)  if  a  hearing  is  necessary,  hold  hearings
    40  regionally  as  necessary  to  ensure access to the remedies provided by
    41  this article and article seven of this chapter; and (C) comply with  the
    42  procedures  under this article and article seven of this chapter and any
    43  rules or regulations promulgated by the committee;
    44    v. [develop a form, which shall be made  available  on  the  internet,
    45  that  may  be  used  by  the  public  to  request a record] establish an
    46  informal mediation program to resolve disputes under  this  article  and
    47  article seven of this chapter; and
    48    vi.  report on its activities [and findings], including the number and
    49  nature of complaints filed with the committee, its  decisions,  and  any
    50  recommended  changes to the law regarding this article and article seven
    51  of this chapter, [including recommendations for changes in the law,]  to
    52  the  governor  and  the  legislature  annually,  on  or before [December
    53  fifteenth] October thirty-first.
    54    (c) The committee shall appoint an executive director who shall not be
    55  an existing state employee and who shall serve for a term of five years,
    56  unless removed by a majority vote of the committee. The executive direc-

        S. 387                              7

     1  tor shall receive a salary in the same amount as  set  forth  for  state
     2  officers  in  subdivision  two  of section one hundred sixty-nine of the
     3  executive law. The executive director may serve no more than two terms.
     4    (d) The executive director shall not seek election nor accept appoint-
     5  ment  to  any political office during their tenure as executive director
     6  and for one year thereafter.
     7    (e) The executive director shall ensure that the duties of the commit-
     8  tee on open government are carried out and  shall  monitor  appeals  and
     9  complaints submitted to the committee.
    10    (a)  The  committee  on [public access to records may] open government
    11  shall promulgate guidelines regarding deletion of identifying details or
    12  withholding of records otherwise available under this article to prevent
    13  unwarranted invasions of personal  privacy.  [In  the  absence  of  such
    14  guidelines,  an  agency  may  delete  identifying  details when it makes
    15  records available.]
    16    (b) An unwarranted invasion of personal privacy  includes,  but  shall
    17  not be limited to:
    18    i.  disclosure  of employment, medical or credit histories or personal
    19  references of applicants for employment;
    20    ii. disclosure of items involving the medical or personal records of a
    21  client or patient in a medical facility;
    22    iii. sale or release of lists of names of natural persons and residen-
    23  tial addresses if such lists would be used  for  solicitation  or  fund-
    24  raising purposes;
    25    iv.  disclosure  of  information  of a personal nature when disclosure
    26  would result in economic or personal hardship to the subject  party  and
    27  such information is not relevant to the work of the agency requesting or
    28  maintaining it;
    29    v.  disclosure  of information of a personal nature reported in confi-
    30  dence to an agency and not relevant to the ordinary work of such agency;
    31    vi. information of a personal nature contained in a  workers'  compen-
    32  sation  record,  except  as provided by section one hundred ten-a of the
    33  workers' compensation law;
    34    vii. disclosure of electronic contact information, such as  an  e-mail
    35  address  or  a  social  network username, that has been collected from a
    36  taxpayer under section one hundred four of the real property tax law; or
    37    viii. disclosure of law enforcement arrest or booking  photographs  of
    38  an  individual,  unless  public release of such photographs will serve a
    39  specific law enforcement purpose and disclosure is not precluded by  any
    40  state or federal laws.
    41    3.  (a)  Each entity subject to the provisions of this article, within
    42  [five] ten business days of the receipt of  a  [written  request  for  a
    43  record  reasonably described] record or records request, shall make such
    44  record or records available to the  [person  requesting  it,  deny  such
    45  request  in  writing]  requestor or furnish a written acknowledgement of
    46  the receipt of such request [and a statement of  the  approximate  date,
    47  which  shall  be reasonable under the circumstances of the request, when
    48  such request will be granted or denied,] including, where appropriate, a
    49  statement that access to the record or records  will  be  determined  in
    50  accordance  with subdivision five of this section.  Such acknowledgement
    51  shall include:
    52    i. a statement of the approximate  date,  which  shall  be  reasonable
    53  under  the  circumstances  of  the request not to exceed twenty business
    54  days from receipt of the original request, and  advising  if  exceptions
    55  will  apply,  when  such  request  will be granted or denied, including,

        S. 387                              8

     1  where appropriate, a statement that access to the record will be  deter-
     2  mined in accordance with subdivision five of this section; or
     3    ii.  if  an  agency determines to grant a request in whole or in part,
     4  and if circumstances prevent disclosure to  the  person  requesting  the
     5  record  or  records  within  twenty  business  days from the date of the
     6  acknowledgement of the receipt of the request, the agency  shall  state,
     7  in writing, both the reason for the inability to grant the request with-
     8  in  twenty  business days and a date certain within a reasonable period,
     9  depending on the circumstances, when the  request  will  be  granted  in
    10  whole or in part, and advise if exceptions will apply.
    11    iii. In the event that the agency determines it cannot grant access to
    12  any of the requested record or records: (A) a statement of determination
    13  that access to the requested record or records cannot be granted because
    14  the  request  was  made to the wrong agency; (B) a statement of determi-
    15  nation that access to the requested record or records cannot be  granted
    16  because  the  request  is too vague; or (C) a statement of determination
    17  that access to the requested record or records cannot be granted because
    18  the record or records do not exist.
    19    (b) Where appropriate, an agency shall make a determination under this
    20  subdivision for each category of record in a records request  containing
    21  more than one records request.
    22    (c)  An  agency shall not deny a request on the basis that the request
    23  is voluminous or that locating, generating, or reviewing  the  requested
    24  records  or  providing  the  requested  copies is burdensome because the
    25  agency lacks sufficient staffing or on any other basis if the agency may
    26  engage an outside professional service to provide  copying,  programming
    27  or  other  services required to provide the copy, the costs of which the
    28  agency may recover pursuant to  paragraph  (c)  of  subdivision  one  of
    29  section eighty-seven of this article.
    30    (d)  An  agency  may  require  a  person  requesting lists of names of
    31  natural persons and residential addresses to provide a  written  certif-
    32  ication  that such person will not use such lists of names and addresses
    33  for solicitation or fund-raising purposes and will  not  sell,  give  or
    34  otherwise  make available such lists of names and addresses to any other
    35  person for the purpose of allowing that person  to  use  such  lists  of
    36  names  and  addresses  for solicitation or fund-raising purposes. [If an
    37  agency determines to grant a request in whole or in part, and if circum-
    38  stances prevent disclosure  to  the  person  requesting  the  record  or
    39  records within twenty business days from the date of the acknowledgement
    40  of  the receipt of the request, the agency shall state, in writing, both
    41  the reason for the inability to grant the request within twenty business
    42  days and a date certain within a reasonable  period,  depending  on  the
    43  circumstances, when the request will be granted in whole or in part.]
    44    (e) Upon payment of, or offer to pay, the fee prescribed therefor, the
    45  entity  shall  provide a copy of such record and certify to the correct-
    46  ness of such copy if so requested, or as the case may be, shall  certify
    47  that  it  does  not  have  possession of such record or that such record
    48  cannot be found after diligent search. Nothing in this article shall  be
    49  construed  to  require any entity to prepare any record not possessed or
    50  maintained by such entity except the records  specified  in  subdivision
    51  three  of  section eighty-seven and subdivision three of section eighty-
    52  eight of this article. When an agency has the  ability  to  retrieve  or
    53  extract  a  record  or data maintained in a computer storage system with
    54  reasonable effort, it shall be required to do so. When doing so requires
    55  less employee time than engaging in manual retrieval or redactions  from
    56  non-electronic  records,  the  agency  shall  be required to retrieve or

        S. 387                              9

     1  extract such record or data electronically. Any programming necessary to
     2  retrieve a record maintained in a computer storage system and to  trans-
     3  fer  that  record  to  the  medium requested by a person or to allow the
     4  transferred  record  to be read or printed shall not be deemed to be the
     5  preparation or creation of a new record.
     6    [(b)] (f) All entities shall[, provided  such  entity  has  reasonable
     7  means  available,]  accept requests for records submitted in the form of
     8  electronic mail and shall respond to such requests by  electronic  mail,
     9  using  forms,  to  the  extent  practicable, consistent with the form or
    10  forms developed by the committee on open government pursuant to subdivi-
    11  sion one of this section and provided that the written requests  do  not
    12  seek a response in some other form.  Agencies shall not require requests
    13  to  be  made  in any specific format and may not ignore or deny requests
    14  not made in the agency's preferred format.
    15    [(c)] (g) Each state agency, as defined in subdivision  five  of  this
    16  section,  that maintains a website shall ensure its website provides for
    17  the online submission of a request for records pursuant to this article.
    18    (h) All responses to requests shall be attributed to a natural  person
    19  who is an employee of the responding entity. Responses containing denial
    20  of  requests,  asserting  exceptions  to  disclosure,  or asserting that
    21  records do not exist, shall be sworn under the penalty of perjury.
    22    4. (a) Except as provided in subdivision five  of  this  section,  any
    23  person  denied access to a record may within [thirty] ninety days appeal
    24  in writing such denial to the [head, chief executive or  governing  body
    25  of  the  entity,  or  the person therefor designated by such head, chief
    26  executive, or governing body, who shall within ten business days of  the
    27  receipt of such appeal fully explain in writing to the person requesting
    28  the  record  the  reasons  for  further denial, or provide access to the
    29  record sought. In addition, each agency shall immediately forward to the
    30  committee on open government a copy of such appeal when received by  the
    31  agency  and the ensuing determination thereon] committee on open govern-
    32  ment. Failure by an agency to conform to the provisions  of  subdivision
    33  three  of this section shall constitute a denial. A written appeal shall
    34  include, if available, a copy of the original request for public  record
    35  or records, and the agency's response, if any.
    36    i.  Upon receipt of an appeal under this subdivision, the committee on
    37  open government shall assign an appeals officer to determine whether the
    38  appeal is within the  committee's  jurisdiction,  frivolous  or  without
    39  factual  basis, reduce that conclusion to writing and transmit a copy to
    40  the requestor and to the responsible records access officer and  request
    41  a  written  response from the agency. Upon receipt of a request from the
    42  committee on open government an agency shall provide a written  response
    43  to  the  appeal  within  fifteen  days after receiving the request for a
    44  response; and if the appeal alleges the agency failed to  respond  to  a
    45  request  within  the  statutory  time,  provide a response to the record
    46  request; and if the appeal  alleges  the  agency  denied  a  request  in
    47  violation  of  this article, provide a copy of the record, a descriptive
    48  index of the record, or a written reason why the record is  being  with-
    49  held, as appropriate.
    50    ii. The agency or requestor shall provide an affidavit or statement of
    51  facts  at issue in the appeal within the time provided in a request that
    52  the committee on open government may make.
    53    iii. The committee on open government shall maintain the confidential-
    54  ity of any record provided under this subdivision.

        S. 387                             10

     1    iv. A person or agency may not be civilly  or  criminally  liable  for
     2  providing a record to the committee on open government under this subdi-
     3  vision.
     4    v.  The  provision  of  a  record  or a description of a record to the
     5  committee on open government under this subdivision may not be construed
     6  as a waiver of any applicable privilege.
     7    vi. Upon receipt of the agency response and any additional information
     8  requested under this subdivision, the committee on open government shall
     9  invite the requestor to participate in an informal mediation; and  issue
    10  a  written  decision  within  fifteen  days  of  the  date the requestor
    11  declines informal mediation or declares the  informal  mediation  termi-
    12  nated;  or    if  unable  to  reach  a  decision  based  on  the written
    13  submissions, schedule an informal conference with the requestor and  the
    14  agency  that  may  be  conducted  by teleconference or written testimony
    15  submitted by electronic  mail,  and  issue  a  written  decision  within
    16  fifteen  days  of the informal conference; or if unable to issue a deci-
    17  sion within the times specified in this paragraph and paragraph  (b)  of
    18  this subdivision, state in writing the reason for its inability to issue
    19  a  decision  and issue a decision as soon as possible but not later than
    20  sixty days after the filing of the appeal.
    21    v. The committee on open government shall send a copy of  the  written
    22  decision to the requestor and the responding agency.
    23    (b)  An  agency  may,  within  the  statutory time for acknowledging a
    24  records request under this section, submit a written  complaint  to  the
    25  committee on open government alleging that a requestor's records request
    26  or  pattern  of records requests is frivolous, vexatious, or made in bad
    27  faith.
    28    i. Upon receipt of a complaint under this subdivision,  the  committee
    29  on  open  government shall send a copy of the complaint to the requestor
    30  and request a written response that  shall  be  provided  within  thirty
    31  days.
    32    ii. The agency or requestor shall provide an affidavit or statement of
    33  facts  at  issue  in the complaint within the time provided in a request
    34  that the committee on open government may make.
    35    iii. Upon receipt of  the  requestor's  response  and  any  additional
    36  information  requested  under  this  subdivision,  the committee on open
    37  government shall issue a written decision within thirty days determining
    38  whether the requestor's request or patterns of  requests  is  frivolous,
    39  vexatious, or made in bad faith.
    40    iv.  If  the  committee  on open government finds that the requestor's
    41  record request is frivolous, vexatious, or made in bad  faith  based  on
    42  the totality of the circumstances, including the number and scope of the
    43  requestor's  past  records  requests and the agency's responses to those
    44  requests and efforts to cooperate with the requestor, it shall issue  an
    45  order  authorizing  the agency to ignore the records request; or respond
    46  to a less burdensome version of the request within a reasonable time  as
    47  determined by the committee on open government.
    48    v.  The  committee on open government shall send a copy of the written
    49  decision to the requestor and the complaining agency.
    50    (c) Except as provided in subdivision five of this section,  a  person
    51  denied  access to a record in [an appeal determination] a decision under
    52  the provisions of [paragraph] paragraphs (a) and (b) of this subdivision
    53  may bring a proceeding for review of such  denial  pursuant  to  article
    54  seventy-eight  of  the  civil  practice law and rules. In the event that
    55  access to any record is denied pursuant to the provisions of subdivision
    56  two of section eighty-seven of this article, the agency  involved  shall

        S. 387                             11

     1  have  the burden of proving that such record falls within the provisions
     2  of such subdivision two.  [Failure  by  an  agency  to  conform  to  the
     3  provisions  of  paragraph  (a)  of  this  subdivision shall constitute a
     4  denial.
     5    (c)]  (d)  The  court  in  such  a proceeding: (i) [may] shall assess,
     6  against such agency involved, reasonable attorney's fees and other liti-
     7  gation costs reasonably incurred by such person in any  case  under  the
     8  provisions  of  this  section  [in  which  such person has substantially
     9  prevailed, and] when the agency failed to respond to a request or appeal
    10  within the statutory time; [and] (ii) shall assess, against such  agency
    11  involved,  reasonable attorney's fees and other litigation costs reason-
    12  ably incurred by such person in any case under the  provisions  of  this
    13  section  in  which such person has substantially prevailed and the court
    14  finds that the agency had no reasonable basis for  denying  access;  and
    15  (iii)  shall  assess, against such requestor involved, reasonable attor-
    16  ney's fees and other litigation costs reasonably incurred by  an  agency
    17  in  any  case  under  the  provisions of this section in which the court
    18  finds that  the  requestor's  records  request  or  pattern  of  records
    19  requests is frivolous, vexatious, or made in bad faith.
    20    [(d)]  (e)  (i)  Appeal to the appellate division of the supreme court
    21  must be made in accordance with subdivision (a)  of  section  fifty-five
    22  hundred thirteen of the civil practice law and rules.
    23    (ii) An appeal from an agency taken from an order of the court requir-
    24  ing disclosure of any or all records sought:
    25    (A) shall be given preference;
    26    (B)  shall  be brought on for argument on such terms and conditions as
    27  the presiding justice may direct, upon application of any party  to  the
    28  proceeding; and
    29    (C)  shall be deemed abandoned if the agency fails to serve and file a
    30  record and brief within sixty days after the date of  service  upon  the
    31  petitioner  of the notice of appeal, unless consent to further extension
    32  is given by all parties, or unless further extension is granted  by  the
    33  court upon such terms as may be just and upon good cause shown.
    34    (h)  As used in this subdivision the term ["agency" or] "state agency"
    35  means [only a state department,  board,  bureau,  division,  council  or
    36  office  and  any  public  corporation  the majority of whose members are
    37  appointed by  the  governor]  a  board,  bureau,  division,  commission,
    38  committee,  public  authority,  public  corporation,  council, office or
    39  other governmental entity performing a governmental or proprietary func-
    40  tion for the state, except the judiciary or the state legislature.
    41    § 5. This act shall take effect immediately.
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