Bill Text: NY S03438 | 2023-2024 | General Assembly | Amended


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) 2024-06-07 - COMMITTED TO RULES [S03438 Detail]

Download: New_York-2023-S03438-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         3438--A
            Cal. No. 1408

                               2023-2024 Regular Sessions

                    IN SENATE

                                    January 31, 2023
                                       ___________

        Introduced  by  Sen. SKOUFIS -- read twice and ordered printed, and when
          printed to be committed to the Committee on Investigations and Govern-
          ment Operations -- recommitted to the Committee on Investigations  and
          Government  Operations  in  accordance  with  Senate Rule 6, sec. 8 --
          reported favorably from  said  committee,  ordered  to  first  report,
          amended  on  first  report,  ordered  to  a  second report and ordered
          reprinted, retaining its place in the order of second report

        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

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06932-02-4

        S. 3438--A                          2

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

        S. 3438--A                          3

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

        S. 3438--A                          4

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

        S. 3438--A                          5

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

        S. 3438--A                          6

     1    ii.  Members of the committee shall be appointed from a pool of appli-
     2  cants identified by the governor and the governor shall publish  on  the
     3  governor's  website  notice  of the governor's intent to consider appli-
     4  cants for positions on the committee on open government and  the  notice
     5  shall include the application procedures, criteria for evaluating appli-
     6  cants'  qualifications,  and  procedures  for resolving any conflicts of
     7  interest; and solicit recommendations for committee members  from  agen-
     8  cies,  news  media,  and  nongovernmental  nonprofit groups that work on
     9  issues related to transparency or open government; and  post  names  and
    10  qualifications  of applicants on the governor's website; and when evalu-
    11  ating an applicant, consider the need for geographic, political, racial,
    12  ethnic, cultural, and gender diversity on the committee and  ensure  the
    13  neutrality of the committee.
    14    iii.  Subject  to  the  advice and consent of the senate, the governor
    15  shall appoint the members of the committee from the pool  of  applicants
    16  created pursuant to this section.
    17    iv. The committee shall [hold no less than two meetings annually] meet
    18  at least monthly, but may meet at any time.
    19    v. The members of the committee shall be entitled to reimbursement for
    20  actual expenses incurred in the discharge of their duties.
    21    (b) The committee shall:
    22    i.  [furnish  to  any  agency  advisory  guidelines, opinions or other
    23  appropriate information regarding this article] issue advisory  opinions
    24  to any agency or person which shall be made available on the committee's
    25  website;
    26    ii.  [furnish  to  any  person  advisory opinions or other appropriate
    27  information regarding this article] provide annual training to agencies,
    28  public officials and public employees on articles six and seven of  this
    29  chapter;
    30    iii. promulgate rules and regulations [with respect to the implementa-
    31  tion  of  subdivision  one  and  paragraph  (c)  of subdivision three of
    32  section eighty-seven] to carry out the provisions of this article  which
    33  shall be made available on the committee's website;
    34    iv. [request from any agency such assistance, services and information
    35  as  will  enable  the  committee to effectively carry out its powers and
    36  duties] assign appeals officers to review appeals of decisions by  agen-
    37  cies  and  issue  orders  and  opinions.  The  committee shall employ or
    38  contract with attorneys to serve as appeals officers to  review  appeals
    39  and, if necessary, to hold hearings on a regional basis under this arti-
    40  cle.  Each  appeals  officer  must comply with all of the following: (A)
    41  complete a training course provided by the committee prior to acting  as
    42  an  appeals  officer;  (B)  if  a  hearing  is  necessary, hold hearings
    43  regionally as necessary to ensure access to  the  remedies  provided  by
    44  this  article and article seven of this chapter; and (C) comply with the
    45  procedures under this article and article seven of this chapter and  any
    46  rules or regulations promulgated by the committee;
    47    v.  [develop  a  form,  which shall be made available on the internet,
    48  that may be used by  the  public  to  request  a  record]  establish  an
    49  informal  mediation  program  to resolve disputes under this article and
    50  article seven of this chapter; and
    51    vi. report on its activities [and findings], including the number  and
    52  nature  of  complaints  filed with the committee, its decisions, and any
    53  recommended changes to the law regarding this article and article  seven
    54  of  this chapter, [including recommendations for changes in the law,] to
    55  the governor and  the  legislature  annually,  on  or  before  [December
    56  fifteenth] October thirty-first.

        S. 3438--A                          7

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

        S. 3438--A                          8

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

        S. 3438--A                          9

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

        S. 3438--A                         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. 3438--A                         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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