Senate Bill S3423

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

                                  3423

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 1, 2013
                               ___________

Introduced  by  Sen. KRUEGER -- 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  and  the  executive  law,  in
  relation  to  providing  for  the  review  by  the attorney general of
  requests denied under the Freedom of Information Law

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

  Section  1. Subdivision 4 of section 89 of the public officers law, as
amended by chapter 22 of the laws of 2005, paragraph (c) as  amended  by
chapter 492 of the laws of 2006, is amended to read as follows:
  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 shall immediately forward to the  committee  on
open  government  a  copy of such appeal when received by the agency and
the ensuing determination thereon. Failure by an agency  to  conform  to
the  provisions  of subdivision three of this section shall constitute a
denial.
 UPON RECEIPT OF A COPY OF AN  APPEAL  UNDER  PARAGRAPH  (A-1)  OF  THIS
SUBDIVISION,  EACH  AGENCY SHALL IMMEDIATELY FORWARD TO THE COMMITTEE ON
OPEN GOVERNMENT A COPY OF SUCH APPEAL WHEN RECEIVED BY  THE  AGENCY  AND
THE ENSUING DETERMINATION THEREON.
  (A-1) EXCEPT AS PROVIDED IN SUBDIVISION FIVE OF THIS SECTION, A PERSON
DENIED  ACCESS TO A RECORD PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION
MAY WITHIN THIRTY DAYS APPEAL IN WRITING SUCH  DENIAL  TO  THE  ATTORNEY
GENERAL,  WHO  SHALL  WITHIN TWENTY BUSINESS DAYS OF THE RECEIPT OF SUCH

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01555-01-3
              

S. 3423                             2

APPEAL, ADJUDGE SUCH APPEAL MERITORIOUS OR  NON-MERITORIOUS.  COPIES  OF
SUCH DETERMINATION SHALL BE PROMPTLY FORWARDED BY CERTIFIED MAIL, RETURN
RECEIPT  REQUESTED,  TO  THE PERSON REQUESTING THE RECORD AND THE AGENCY
MAKING  FURTHER  DENIAL  THEREOF.  SUCH  DETERMINATION  SHALL  STATE THE
OUTCOME OF THE APPEAL AND SHALL BRIEFLY EXPLAIN THE REASONS THEREFOR.
  (1) IF AN APPEAL IS  DETERMINED  TO  BE  NON-MERITORIOUS,  THE  PERSON
REQUESTING  THE  RECORD  MAY  PROCEED  PURSUANT TO PARAGRAPH (B) OF THIS
SUBDIVISION. PROCEEDING PURSUANT TO THE  PROVISIONS  OF  THIS  PARAGRAPH
SHALL  NOT  BE  DEEMED  A  NECESSARY  CONDITION PRECEDENT FOR PROCEEDING
PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION.
  (2) IF AN APPEAL IS DETERMINED TO BE MERITORIOUS, THE ATTORNEY GENERAL
SHALL ORDER THE AGENCY TO PROVIDE ACCESS TO THE RECORD SOUGHT. AN AGENCY
AGGRIEVED BY SUCH AN ORDER MAY BRING A PROCEEDING  FOR  REVIEW  OF  SUCH
DENIAL  PURSUANT  TO ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND
RULES;  PROVIDED  THAT  NO   SUCH   PROCEEDING   PURSUANT   TO   ARTICLE
SEVENTY-EIGHT  OF THE CIVIL PRACTICE LAW AND RULES MAY BE BROUGHT UNLESS
SUCH AGENCY SHALL HAVE NOTIFIED THE  ATTORNEY  GENERAL  AND  THE  PERSON
REQUESTING  THE  RECORD OF ITS INTENT TO INSTITUTE SUCH A PROCEEDING, IN
THE MANNER PRESCRIBED FOR THE SERVICE OF A SUMMONS, WITHIN TWENTY  BUSI-
NESS  DAYS  OF THE MAILING OF THE DETERMINATION BY THE ATTORNEY GENERAL.
THE COURT MAY EXTEND THIS PERIOD FOR AN ADDITIONAL TWENTY BUSINESS  DAYS
FOR GOOD CAUSE SHOWN.
  (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 involved shall have the burden of proving  that
such record falls within the provisions of such subdivision two. Failure
by  an  agency  to  conform  to  the provisions of paragraph (a) of this
subdivision shall constitute a denial.
  (c) The court in such a proceeding may  assess,  against  such  agency
involved,  reasonable attorney's fees and other litigation costs reason-
ably incurred by such person in any case under the  provisions  of  this
section in which such person has substantially prevailed, when:
  i. the agency had no reasonable basis for denying access; or
  ii.  the  agency  failed  to respond to a request or appeal within the
statutory time.
  S 2. The executive law is amended by adding a new section 63-e to read
as follows:
  S 63-E. ADJUDICATION BY ATTORNEY GENERAL OF APPEALS FOR THE DENIAL  OF
ACCESS  TO  A  RECORD UNDER THE FREEDOM OF INFORMATION LAW. THE ATTORNEY
GENERAL SHALL REVIEW APPEALS FOR THE DENIAL OF ACCESS TO A RECORD  UNDER
THE  FREEDOM  OF INFORMATION LAW PURSUANT TO PARAGRAPH (A-1) OF SUBDIVI-
SION FOUR OF SECTION EIGHTY-NINE OF THE PUBLIC OFFICERS LAW.  THE ATTOR-
NEY GENERAL SHALL PRESCRIBE SUCH RULES OF PROCEDURE AND FORMS AS MAY  BE
DEEMED  NECESSARY  OR  CONVENIENT  TO THE EXECUTION OF THE PROVISIONS OF
THIS SECTION.
  S 3. This act shall take effect on the one hundred twentieth day after
it shall have become a law. Effective immediately the department of  law
is  authorized  to promulgate any and all rules and regulations and take
any other measures necessary to implement this act on its effective date
on or before such date.