senate Bill S176

2013-2014 Legislative Session

Provides that the state legislature be subject to the same freedom of information laws as other state agencies; repealer

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to investigations and government operations
Jan 09, 2013 referred to investigations and government operations

S176 - Bill Details

See Assembly Version of this Bill:
A2015
Current Committee:
Senate Investigations And Government Operations
Law Section:
Public Officers Law
Laws Affected:
Amd §§87 & 89, rpld §88, Pub Off L; amd §70-0113, En Con L; amd §713, Exec L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S48A, A9069
2009-2010: S5300

S176 - Bill Texts

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Provides that the state legislature be subject to the same freedom of information laws as other state agencies.

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BILL NUMBER:S176

TITLE OF BILL:
An act
to amend the public officers law, the environmental conservation law and
the executive law, in relation to freedom of information pertaining to
legislative documents; and to repeal certain provisions of
the public officers law
relating thereto

PURPOSE:
The bill would make the Legislature subject to the freedom of
information law (FOIL) in the same manner that state agencies are
subject to such law.

SUMMARY OF PROVISIONS:
Sections 1 through 6 amend various subdivisions of public officers law
§ 87 to add the State Legislature to the existing FOIL provisions that
apply to state agencies and other public entities.

Section 7 repeals public officers law 188, which currently sets forth
the public's ability to access state legislative records.

Sections 8 through 11 make conforming changes to various provisions of
public officers law 189.

Section 12 makes a conforming change to environmental conservation law
170-0113.

Section 13 makes a conforming change to executive law § 713.

Section 14 makes this act effective immediately upon enactment.

JUSTIFICATION:
New York State's FOIL statute, as it applies to the State Legislature,
is in need of reform. The FOIL provisions covering state and local
agencies other than the Legislature (public officers law 187) provide
that a requested document is presumed to be available to the public,
unless the document (or information within the document) fall into a
specific, statutory exclusion., In contrast, public officers law 188,
which covers the State Legislature, sets forth a list of specific
legislative documents that the public is entitled to. If a record is
not on this list, the public cannot obtain it through FOIL.

Under current law (public officers law 188), the public is entitled to
receive only the following documents from the Legislature: (al bills
and amendments, fiscal notes, introducers' bill memoranda,
resolutions and
amendments thereto, and index records; (b) messages received from the
Governor or the other house of the Legislature, and home rule messages;
(c) legislative notification of the proposed adoption of rules by an
agency; (d) transcripts or minutes, if prepared, and journal records
of public sessions including meetings of committees and subcommittees
and public hearings, with the records of attendance of members
thereat and records of any votes taken; (e) internal or external
audits and statistical or factual tabulations of or with respect to,


material otherwise available for public inspection and copying
pursuant to this section or any other applicable provision of law;
(f) administrative staff manuals and instructions to staff that
affect members of the public; (g) final reports and formal opinions
submitted to the Legislature; (h) final reports or recommendations
and minority or dissenting reports and opinions of members of
committees, subcommittees, or commissions of the legislature; (i) any
other files, records, papers or documents required by law to be made
available for public inspection and copying; G) external audits
conducted pursuant to Legislative Law §92 and schedules issued
pursuant to Legislative Law §92(2).

This bill would bring the Legislature into public officers law §87,
with its presumption that documents should be available to the
public. Legislative information of all types, not merely the items
enumerated above, would be presumed to be available. This is an
important reform that would enable the public to better
understand-and become more involved in-the legislative process, and
to better hold their state legislators accountable.

LEGISLATIVE HISTORY:
2009-10: S.5300 (Squadron) - Investigations and Government Operations,
A.431 (Kavanagh) - Government Operations
2012: Amend and Recommit to Investigations and Government Operations
2012: Print number 48A

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.

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

                                   176

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by Sen. SQUADRON -- 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, the environmental  conservation
  law  and  the  executive  law,  in  relation to freedom of information
  pertaining to legislative documents; and to repeal certain  provisions
  of the public officers law relating thereto

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

  Section 1. The section heading of section 87 of  the  public  officers
law,  as added by chapter 933 of the laws of 1977, is amended to read as
follows:
  Access to agency AND STATE LEGISLATIVE records.
  S 2. The opening paragraph  of  paragraph  (b)  of  subdivision  1  of
section  87  of the public officers law, as amended by chapter 80 of the
laws of 1983, is amended to read as follows:
  Each agency AND HOUSE OF THE STATE LEGISLATURE shall promulgate  rules
and  regulations,  in  conformity with this article and applicable rules
and regulations promulgated pursuant to the provisions of paragraph  (a)
of  this subdivision, and pursuant to such general rules and regulations
as may be promulgated by the committee on open government in  conformity
with  the  provisions of this article, pertaining to the availability of
records and procedures to be followed, including, but not limited to:
  S 3. The opening paragraph and  paragraph  (i)  of  subdivision  2  of
section 87 of the public officers law, the opening paragraph as added by
chapter  933 of the laws of 1977 and paragraph (i) as amended by chapter
154 of the laws of 2010, are amended to read as follows:
  Each agency AND HOUSE OF THE STATE LEGISLATURE  shall,  in  accordance
with its published rules, make available for public inspection and copy-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02813-01-3

S. 176                              2

ing  all records, except that such agency OR HOUSE OF THE STATE LEGISLA-
TURE may deny access to records or portions thereof that:
  (i)  if disclosed, would jeopardize the capacity of an agency OR HOUSE
OF THE STATE LEGISLATURE or an entity that has shared  information  with
an agency OR HOUSE OF THE STATE LEGISLATURE to guarantee the security of
its  information  technology assets, such assets encompassing both elec-
tronic information systems and infrastructures; or
  S 4. Paragraph (d) of subdivision 2 of section 87 of the public  offi-
cers  law,  as amended by chapter 289 of the laws of 1990, is amended to
read as follows:
  (d) are trade secrets or are submitted  to  an  agency  OR  THE  STATE
LEGISLATURE  by  a  commercial  enterprise  or  derived from information
obtained from a commercial enterprise and which if disclosed would cause
substantial injury to the competitive position  of  the  subject  enter-
prise;
  S  5. Subdivision 3 of section 87 of the public officers law, as added
by chapter 933 of the laws of 1977, paragraph (c) as amended by  chapter
499 of the laws of 2008, is amended to read as follows:
  3. Each agency OR HOUSE OF THE STATE LEGISLATURE shall maintain:
  (a) a record of the final vote of each member in every agency OR HOUSE
proceeding in which the member votes;
  (b)  a record setting forth the name, public office address, title and
salary of every officer or employee of the agency OR HOUSE OF THE  STATE
LEGISLATURE; and
  (c)  a  reasonably  detailed  current  list  by  subject matter of all
records in the possession of the agency OR HOUSE OF THE  STATE  LEGISLA-
TURE,  whether  or  not  available under this article. Each agency shall
update its subject matter list annually, and the date of the most recent
update shall be conspicuously indicated on the list. Each  state  agency
as  defined in subdivision four of this section that maintains a website
shall post its current list on its website and  such  posting  shall  be
linked  to  the  website  of  the committee on open government. Any such
agency that does not maintain a website shall arrange to have  its  list
posted on the website of the committee on open government.
  S  6. Subdivision 4 of section 87 of the public officers law, as added
by chapter 890 of the laws of 1981, paragraph (c) as  added  by  chapter
102 of the laws of 2007, is amended to read as follows:
  4.  (a)  Each  state  agency [which] OR HOUSE OF THE STATE LEGISLATURE
THAT maintains records containing trade secrets, to which access may  be
denied  pursuant  to  paragraph  (d) of subdivision two of this section,
shall promulgate regulations OR RULES in conformity with the  provisions
of subdivision five of section eighty-nine of this article pertaining to
such records, including, but not limited to the following:
  (1) the manner of identifying the records or parts;
  (2)  the  manner  of identifying persons within the agency OR HOUSE OF
THE STATE LEGISLATURE to whose custody the  records  or  parts  will  be
charged  and  for  whose  inspection  and study the records will be made
available;
  (3) the manner of safeguarding against any unauthorized access to  the
records.
  (b)  As  used  in this subdivision the term "agency" or "state agency"
means [only] EITHER HOUSE OF THE STATE LEGISLATURE, a state  department,
board,  bureau,  division,  council or office and any public corporation
the majority of whose members are appointed by the governor.
  (c) Each state agency that maintains a website shall post  information
related  to  this  article  and  article  six-A  of  this chapter on its

S. 176                              3

website. Such information shall include, at a minimum, contact  informa-
tion  for  the  persons from whom records of the agency may be obtained,
the times and places such records are available for inspection and copy-
ing,  and information on how to request records in person, by mail, and,
if the agency accepts requests for records  electronically,  by  e-mail.
This  posting  shall  be  linked to the website of the committee on open
government.
  S 7. Section 88 of the public officers law is REPEALED.
  S 8. Paragraph (b) of subdivision 1 of section 89 of the public  offi-
cers  law,  as amended by chapter 182 of the laws of 2006, is amended to
read as follows:
  (b) The committee shall:
  i. furnish to any agency OR HOUSE OF THE  STATE  LEGISLATURE  advisory
guidelines,  opinions  or  other  appropriate information regarding this
article;
  ii. furnish to any  person  advisory  opinions  or  other  appropriate
information regarding this article;
  iii.  promulgate rules and regulations with respect to the implementa-
tion of subdivision one  and  paragraph  (c)  of  subdivision  three  of
section eighty-seven of this article;
  iv.  request  from  any  agency OR HOUSE OF THE STATE LEGISLATURE such
assistance, services and information as will  enable  the  committee  to
effectively carry out its powers and duties;
  v. develop a form, which shall be made available on the internet, that
may be used by the public to request a record; and
  vi.  report  on its activities and findings regarding this article and
article seven of this chapter, including recommendations for changes  in
the  law,  to  the  governor  and the legislature annually, on or before
December fifteenth.
  S 9. Paragraph (a) of subdivision 2 of section 89 of the public  offi-
cers  law,  as amended by section 11 of part U of chapter 61 of the laws
of 2011, is amended to read as follows:
  (a) The committee on public access to records  may  promulgate  guide-
lines  regarding  deletion  of  identifying  details  or  withholding of
records otherwise available under this article  to  prevent  unwarranted
invasions  of  personal  privacy.  In the absence of such guidelines, an
agency OR EACH HOUSE OF THE STATE  LEGISLATURE  may  delete  identifying
details when it makes records available.
  S  10.  Subparagraphs  iv  and  v of paragraph (b) of subdivision 2 of
section 89 of the public officers law, as amended by section 11 of  part
U of chapter 61 of the laws of 2011, are amended to read as follows:
  iv.  disclosure  of  information  of a personal nature when disclosure
would result in economic or personal hardship to the subject  party  and
such  information is not relevant to the work of the agency [requesting]
or HOUSE OF THE STATE LEGISLATURE maintaining it;
  v. disclosure of information of a personal nature reported  in  confi-
dence  to an agency and not relevant to the ordinary work of such agency
OR HOUSE OF THE STATE LEGISLATURE;
  S 11. Subdivisions 3, 4 and 5 of section 89  of  the  public  officers
law, subdivision 3 as amended by chapter 223 of the laws of 2008, subdi-
vision  4 as amended by chapter 22 of the laws of 2005, paragraph (c) of
subdivision 4 as amended by chapter 492 of the laws of 2006, subdivision
5 as added by chapter 890 of the laws of 1981, paragraph (a) of subdivi-
sion 5 as amended by chapter 403 of the laws of 2003 and  paragraph  (d)
of  subdivision  5  as  amended  by chapter 339 of the laws of 2004, are
amended to read as follows:

S. 176                              4

  3. (a) Each entity subject to the provisions of this  article,  within
five  business  days  of  the  receipt of a written request for a record
reasonably described, shall make such record  available  to  the  person
requesting  it,  deny  such  request  in  writing  or  furnish a written
acknowledgement  of  the  receipt of such request and a statement of the
approximate date, which shall be reasonable under the  circumstances  of
the  request,  when  such  request will be granted or denied, including,
where appropriate, a statement that access to the record will be  deter-
mined  in  accordance with subdivision five of this section. An [agency]
ENTITY shall not deny a request on the basis that the request is volumi-
nous or that locating or reviewing the requested  records  or  providing
the  requested  copies  is  burdensome because the [agency] ENTITY lacks
sufficient staffing or on any other basis if  the  [agency]  ENTITY  may
engage  an  outside professional service to provide copying, programming
or other services required to provide the copy, the costs of  which  the
[agency] ENTITY may recover pursuant to paragraph (c) of subdivision one
of  section eighty-seven of this article. An [agency] ENTITY may require
a person requesting lists of names and addresses to  provide  a  written
certification  that  such  person  will  not use such lists of names and
addresses for solicitation or fund-raising purposes and will  not  sell,
give  or  otherwise  make available such lists of names and addresses to
any other person for the purpose of allowing that  person  to  use  such
lists  of names and addresses for solicitation or fund-raising purposes.
If an [agency] ENTITY determines to grant a request in whole or in part,
and if circumstances prevent disclosure to  the  person  requesting  the
record  or  records  within  twenty  business  days from the date of the
acknowledgement of the receipt of the request, the [agency] ENTITY shall
state, in writing, both the  reason  for  the  inability  to  grant  the
request  within twenty business days and a date certain within a reason-
able period, depending on the circumstances, when the  request  will  be
granted  in whole or in part.  Upon payment of, or offer to pay, the fee
prescribed therefor, the entity shall provide a copy of such record  and
certify  to the correctness of such copy if so requested, or as the case
may be, shall certify that it does not have possession of such record or
that such record cannot be found after diligent search. Nothing in  this
article  shall  be construed to require any entity to prepare any record
not possessed or maintained by such entity except the records  specified
in  subdivision  three of section eighty-seven [and subdivision three of
section eighty-eight] of this article. When an [agency] ENTITY  has  the
ability to retrieve or extract a record or data maintained in a computer
storage  system  with  reasonable effort, it shall be required to do so.
When doing so requires  less  employee  time  than  engaging  in  manual
retrieval or redactions from non-electronic records, the [agency] ENTITY
shall  be  required to retrieve or extract such record or data electron-
ically. Any programming necessary to retrieve a record maintained  in  a
computer  storage  system  and  to  transfer  that  record to the medium
requested by a person or to allow the transferred record to be  read  or
printed  shall  not be deemed to be the preparation or creation of a new
record.
  (b) All entities shall, provided  such  entity  has  reasonable  means
available,  accept  requests  for records submitted in the form of elec-
tronic mail and shall respond to such requests by electronic mail, using
forms, to the extent practicable, consistent  with  the  form  or  forms
developed  by  the  committee on open government pursuant to subdivision
one of this section and provided that the written requests do not seek a
response in some other form.

S. 176                              5

  4. (a) Except as provided in subdivision five  of  this  section,  any
person  denied access to a record may within thirty days appeal in writ-
ing such denial to the head, chief executive or governing  body  of  the
entity, or the person therefor designated by such head, chief executive,
or  governing body, who shall within ten business days of the receipt of
such appeal fully explain in writing to the person requesting the record
the reasons for further denial, or provide access to the record  sought.
In  addition,  each  [agency]  ENTITY  shall  immediately forward to the
committee on open government a copy of such appeal when received by [the
agency] SUCH ENTITY and the ensuing determination thereon. Failure by an
[agency] ENTITY to conform to the provisions  of  subdivision  three  of
this section shall constitute a denial.
  (b)  Except  as provided in subdivision five of this section, a person
denied  access  to  a  record  in  an  appeal  determination  under  the
provisions  of  paragraph (a) of this subdivision may bring a proceeding
for review of such denial pursuant to article seventy-eight of the civil
practice law and rules. In the event that access to any record is denied
pursuant to the provisions of subdivision two of section eighty-seven of
this article, the [agency] ENTITY involved  shall  have  the  burden  of
proving that such record falls within the provisions of such subdivision
two. Failure by an [agency] ENTITY to conform to the provisions of para-
graph (a) of this subdivision shall constitute a denial.
  (c)  The  court in such a proceeding may assess, against such [agency]
ENTITY involved, reasonable attorney's fees and other  litigation  costs
reasonably  incurred  by such person in any case under the provisions of
this section in which such person has substantially prevailed, when:
  i. the [agency] ENTITY had no reasonable basis for denying access; or
  ii. the [agency] ENTITY failed to respond to a request or appeal with-
in the statutory time.
  5. (a) (1) A person acting pursuant to law or regulation  who,  subse-
quent to the effective date of this subdivision, submits any information
to  any  state agency OR HOUSE OF THE STATE LEGISLATURE may, at the time
of submission, request that the agency OR HOUSE OF THE STATE LEGISLATURE
except such information from disclosure under paragraph (d) of  subdivi-
sion  two  of  section  eighty-seven  of this article. Where the request
itself contains information which if disclosed would defeat the  purpose
for  which  the  exception  is  sought,  such  information shall also be
excepted from disclosure.
  (1-a) A person or entity who submits or otherwise makes available  any
records  to  any  agency  OR HOUSE OF THE STATE LEGISLATURE, may, at any
time, identify those records or portions thereof that may contain  crit-
ical infrastructure information, and request that the agency OR HOUSE OF
THE  STATE  LEGISLATURE that maintains such records except such informa-
tion from disclosure under subdivision two of  section  eighty-seven  of
this  article.  Where  the  request itself contains information which if
disclosed would defeat the purpose for which the  exception  is  sought,
such information shall also be excepted from disclosure.
  (2)  The  request  for  an exception shall be in writing and state the
reasons why the information should be excepted from disclosure.
  (3) Information submitted as provided in subparagraphs one  and  one-a
of  this  paragraph  shall be excepted from disclosure and be maintained
apart by the [agency] ENTITY from all other records until  fifteen  days
after  the  entitlement to such exception has been finally determined or
such further time as ordered by a court of competent jurisdiction.

S. 176                              6

  (b) On the initiative of the [agency] ENTITY at any time, or upon  the
request  of any person for a record excepted from disclosure pursuant to
this subdivision, the agency shall:
  (1)  inform  the  person who requested the exception of the [agency's]
ENTITY'S intention to determine whether such exception should be granted
or continued;
  (2) permit the person who requested the exception, within ten business
days of receipt of notification from the [agency] ENTITY,  to  submit  a
written  statement  of the necessity for the granting or continuation of
such exception;
  (3) within seven business days of receipt of such  written  statement,
or within seven business days of the expiration of the period prescribed
for  submission  of such statement, issue a written determination grant-
ing, continuing or terminating such exception and  stating  the  reasons
therefor;  copies of such determination shall be served upon the person,
if any, requesting the record, the person who requested  the  exception,
and the committee on public access to records.
  (c)  A  denial  of an exception from disclosure under paragraph (b) of
this subdivision may be appealed by the person submitting  the  informa-
tion  and a denial of access to the record may be appealed by the person
requesting the record in accordance with this subdivision:
  (1) Within seven business days of receipt of  written  notice  denying
the request, the person may file a written appeal from the determination
of  the  [agency] ENTITY with the head of the [agency] ENTITY, the chief
executive officer or governing body or their designated representatives.
  (2) The appeal shall be determined within ten  business  days  of  the
receipt  of  the  appeal.  Written  notice of the determination shall be
served upon the person, if any, requesting the record,  the  person  who
requested  the  exception and the committee on public access to records.
The notice shall contain a statement of the  reasons  for  the  determi-
nation.
  (d)  A proceeding to review an adverse determination pursuant to para-
graph (c) of this subdivision  may  be  commenced  pursuant  to  article
seventy-eight of the civil practice law and rules. Such proceeding, when
brought  by  a  person  seeking an exception from disclosure pursuant to
this subdivision, must be commenced within fifteen days of  the  service
of  the written notice containing the adverse determination provided for
in subparagraph two of paragraph (c) of this subdivision.
  (e) The person requesting an exception  from  disclosure  pursuant  to
this  subdivision  shall  in  all proceedings have the burden of proving
entitlement to the exception.
  (f) Where the [agency] ENTITY denies access to a  record  pursuant  to
paragraph  (d)  of subdivision two of section eighty-seven of this arti-
cle, the [agency] ENTITY shall have  the  burden  of  proving  that  the
record falls within the provisions of such exception.
  (g)  Nothing in this subdivision shall be construed to deny any person
access, pursuant to the remaining provisions of  this  article,  to  any
record or part excepted from disclosure upon the express written consent
of the person who had requested the exception.
  (h)  As used in this subdivision the term ["agency" or "state agency"]
"ENTITY" means [only] EITHER HOUSE OF THE  STATE  LEGISLATURE,  a  state
department,  board,  bureau,  division, council or office and any public
corporation the majority of whose members are appointed by the governor.
  S 12. Section 70-0113 of the environmental conservation law, as  added
by chapter 723 of the laws of 1977, is amended to read as follows:
S 70-0113. Confidentiality.

S. 176                              7

  The  provisions  of section [eighty-eight of article six] EIGHTY-SEVEN
of the public officers law shall  apply  to  information  confidentially
disclosed  by applicants to the department, except as otherwise provided
in this chapter.
  S 13. Subdivision 3 of section 713 of the executive law, as amended by
section  16  of  part B of chapter 56 of the laws of 2010, is amended to
read as follows:
  3. Any reports prepared pursuant to this article shall not be  subject
to  disclosure  pursuant  to  section [eighty-eight] EIGHTY-SEVEN of the
public officers law.
  S 14. This act shall take effect immediately.

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