NY State Senate Bill 2011-S7818

Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 25, 2012	referred to rules

2011-S7818 (ACTIVE) - Details

See Assembly Version of this Bill:: A9460
Current Committee:: Senate Rules
Law Section:: Public Officers Law
Laws Affected:: Amd §§87 & 89, Pub Off L; amd §50-b, Civ Rts L
Versions Introduced in Other Legislative Sessions:: 2013-2014: S5975, A5170
2015-2016: A4468
2017-2018: A3463
2019-2020: A3939
2021-2022: A5470

2011-S7818 (ACTIVE) - Summary

Relates to requiring a particularized and specific justification for denial of access to records under the freedom of information law, exemption from disclosure under the freedom of information law of certain law enforcement related records and to records identifying victims.

2011-S7818 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S7818

TITLE OF BILL:
An act
to amend the public officers law, in relation to requiring a
particularized and specific justification for denial of access to
records under the freedom of information law and
exemption from
disclosure under the freedom of information law of certain law
enforcement related records; and
to amend the civil rights law, in relation to records identifying
victims

PURPOSE:
To clarify certain provisions of FOIL and
other disclosure
laws to make sure that people are not wrongfully denied access to
public records.

SUMMARY OF PROVISIONS:
This bill would make changes
to the Freedom of
Information Law (FOIL) and to section 50-b of the civil rights law.
This bill would provide that when an agency is considering denying
access to records under the law enforcement exception to FOIL on the
grounds that disclosure would interfere with a judicial proceeding,

then the decision of whether to grant access would be made by the
judge presiding over that judicial proceeding. This bill would
clarify that a denial of access to records under FOIL does not
prevent a person from obtaining records under any other law. In
addition, the bill would clarify that parties to any civil or
criminal action or proceeding can use FOIL to obtain records
concerning the action or proceeding. Furthermore, this bill clarifies
that access to a record cannot be withheld due to the type or
category of record. This bill would also amend the law enforcement
exception to FOIL to make clear that records cannot be withheld
solely because they relate in some manner to an investigation or
criminal proceeding. This bill would also amend section 50-b of the
civil rights law to clarify that only the portions of a report that
would identify a victim of a sexual offense are exempt from
disclosure.

JUSTIFICATION:
FOIL provides individuals with greater access to their
government which helps achieve the goal of an open and transparent
government. To that end, there is a strong presumption under FOIL
that government records are accessible to the public and there are a
number of defined exceptions of access to records. Under current law,
access to records or to portions of records is sometimes withheld
when it should not be. Too often, records that were prepared in the
ordinary course of business, that should be accessible to the public,

have been withheld. This bill would clarify certain provisions of
FOIL and section 50-b of the civil rights law to make sure that
people are not wrongfully denied access to public records.

LEGISLATIVE HISTORY:
New Bill.

FISCAL IMPLICATIONS:
None noted.

EFFECTIVE DATE:
This act shall take effect immediately.

2011-S7818 (ACTIVE) - Bill Text download pdf

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

                                  7818

                            I N  S E N A T E

                              June 25, 2012
                               ___________

Introduced  by  Sen.  MARCELLINO  -- read twice and ordered printed, and
  when printed to be committed to the Committee on Rules

AN ACT to amend the public officers law,  in  relation  to  requiring  a
  particularized  and  specific  justification  for  denial of access to
  records under the  freedom  of  information  law  and  exemption  from
  disclosure  under  the  freedom  of  information  law  of  certain law
  enforcement related records; and to amend the  civil  rights  law,  in
  relation to records identifying victims

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 87 of the public officers law is amended by  adding
a new subdivision 6 to read as follows:
  6.  WHEN A REQUEST IS MADE FOR AGENCY RECORDS AND THE AGENCY RECEIVING
SUCH REQUEST IS CONSIDERING DENYING ACCESS PURSUANT TO SUBPARAGRAPH I OF
PARAGRAPH (E) OF SUBDIVISION TWO OF THIS SECTION  ON  THE  GROUNDS  THAT
DISCLOSURE  WOULD  INTERFERE  WITH  A  JUDICIAL  PROCEEDING,  THE AGENCY
RECEIVING SUCH REQUEST SHALL PROMPTLY  NOTIFY,  IN  WRITING,  THE  JUDGE
BEFORE  WHOM  SUCH  JUDICIAL PROCEEDING IS PENDING AND THE PERSON MAKING
THE REQUEST. SUCH JUDGE SHALL NOTIFY THE PERSON REQUESTING THE RECORD OF
ITS RECEIPT, AND OFFER THE PERSON REQUESTING  THE  RECORD  A  REASONABLE
OPPORTUNITY TO BE HEARD. AFTER DUE DELIBERATION, SUCH JUDGE SHALL DETER-
MINE WHETHER ACCESS TO SUCH RECORDS SHOULD BE DENIED PURSUANT TO SUBPAR-
AGRAPH  I  OF PARAGRAPH (E) OF SUBDIVISION TWO OF THIS SECTION AND SHALL
SUBMIT SUCH DETERMINATION IN  WRITING  TO  THE  AGENCY  AND  THE  PERSON
REQUESTING THE RECORD.  THE AGENCY SHALL THEN PROCEED AS REQUIRED PURSU-
ANT TO THIS ARTICLE, IN ACCORDANCE WITH THE COURT'S DETERMINATION.
  S  2. Subdivision 6 of section 89 of the public officers law, as added
by chapter 933 of the laws of 1977 and as renumbered by chapter  890  of
the laws of 1981, is amended to read as follows:
  6.  Nothing in this article shall be construed to limit or abridge any
otherwise available right of access at law or in equity of any party  to
records.  A  DENIAL OF ACCESS TO RECORDS OR TO PORTIONS THEREOF PURSUANT
TO THIS ARTICLE SHALL NOT LIMIT OR ABRIDGE ANY PARTY'S RIGHT  OF  ACCESS

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14817-03-2

S. 7818                             2

TO SUCH RECORDS PURSUANT TO THE CIVIL PRACTICE LAW AND RULES, THE CRIMI-
NAL PROCEDURE LAW, OR ANY OTHER LAW.
  S  3. Section 89 of the public officers law is amended by adding a new
subdivision 10 to read as follows:
  10. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO LIMIT  A  PERSON  OR
ENTITY  THAT  IS  A  PARTY TO ANY CIVIL OR CRIMINAL ACTION OR PROCEEDING
FROM GAINING ACCESS TO RECORDS PURSUANT TO THIS ARTICLE RELATING TO SUCH
ACTION OR PROCEEDING, PROVIDED, HOWEVER, THAT NOTHING IN  THIS  SUBDIVI-
SION  SHALL  PREVENT  THE  DENIAL  OF ACCESS TO SUCH RECORDS OR PORTIONS
THEREOF AFTER PROVIDING PARTICULARIZED AND SPECIFIC  JUSTIFICATION  THAT
SUCH RECORDS MAY BE WITHHELD PURSUANT TO THIS ARTICLE.
  S  4.  The  opening  paragraph  of  subdivision 2 of section 87 of the
public officers law, as added by chapter 933 of the  laws  of  1977,  is
amended to read as follows:
  EACH AGENCY SHALL, IN ACCORDANCE WITH ITS PUBLISHED RULES, MAKE AVAIL-
ABLE FOR PUBLIC INSPECTION AND COPYING ALL RECORDS, EXCEPT THOSE RECORDS
OR  PORTIONS  THEREOF THAT MAY BE WITHHELD PURSUANT TO THE EXCEPTIONS OF
RIGHTS OF ACCESS APPEARING IN THIS SUBDIVISION. A DENIAL OF ACCESS SHALL
NOT BE BASED SOLELY ON THE CATEGORY OR TYPE OF SUCH RECORD AND SHALL  BE
VALID ONLY WHEN THERE IS A PARTICULARIZED AND SPECIFIC JUSTIFICATION FOR
SUCH  DENIAL. Each agency shall, in accordance with its published rules,
make available for public inspection and  copying  all  records,  except
that such agency may deny access to records or portions thereof that:
  S  5. Paragraph (e) of subdivision 2 of section 87 of the public offi-
cers law, as added by chapter 933 of the laws of  1977,  is  amended  to
read as follows:
  (e)  are  [compiled]  PREPARED OR CREATED for law enforcement purposes
[and which, if disclosed, would] ONLY  TO  THE  EXTENT  THAT  DISCLOSURE
WOULD:
  i.   interfere   with   law  enforcement  investigations  or  judicial
proceedings, PROVIDED  HOWEVER,  THAT  ANY  AGENCY  CONSIDERING  DENYING
ACCESS  PURSUANT  TO  THIS SUBPARAGRAPH SHALL PROCEED IN ACCORDANCE WITH
SUBDIVISION SIX OF THIS SECTION;
  ii. deprive a person of a right to a fair trial or  impartial  adjudi-
cation;
  iii.  identify a confidential source or disclose confidential informa-
tion relating to a criminal investigation; or
  iv. reveal criminal investigative  techniques  or  procedures,  except
routine techniques and procedures;
  S 6. Subdivision 1 of section 50-b of the civil rights law, as amended
by chapter 320 of the laws of 2006, is amended to read as follows:
  1.  The identity of any victim of a sex offense, as defined in article
one hundred thirty or section 255.25, 255.26 or 255.27 of the penal law,
or of an offense involving the alleged transmission of the human immuno-
deficiency virus, shall be  confidential.  No  PORTION  OF  ANY  report,
paper, picture, photograph, court file or other documents, in the custo-
dy  or  possession  of  any public officer or employee, which identifies
such a victim shall be made available for  public  inspection.  No  such
public  officer  or  employee  shall  disclose any portion of any police
report, court file, or other document, which tends to  identify  such  a
victim except as provided in subdivision two of this section.
  S 7. This act shall take effect immediately.

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Senate Bill S7818

Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

Actions

2011-S7818 (ACTIVE) - Details

2011-S7818 (ACTIVE) - Summary

2011-S7818 (ACTIVE) - Sponsor Memo

2011-S7818 (ACTIVE) - Bill Text download pdf

Comments

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Sponsored By

Carl L. Marcellino

Archive: Last Bill Status - In Senate Committee Rules Committee

Actions

2011-S7818 (ACTIVE) - Details

2011-S7818 (ACTIVE) - Summary

2011-S7818 (ACTIVE) - Sponsor Memo

2011-S7818 (ACTIVE) - Bill Text download pdf

Comments