senate Bill S5975

2013-2014 Legislative Session

Relates to access to certain records

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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
Oct 30, 2013 referred to rules

Co-Sponsors

S5975 - Bill Details

See Assembly Version of this Bill:
A5170
Current Committee:
Law Section:
Public Officers Law
Laws Affected:
Amd §§87 & 89, Pub Off L; amd §50-b, Civ Rts L
Versions Introduced in 2011-2012 Legislative Session:
A9460, S7818

S5975 - Bill Texts

view 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.

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BILL NUMBER:S5975

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 OR GENERAL IDEA OF BILL:

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 SPECIFIC 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 he 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 they should not
be. Too often records that were prepared in the ordinary course of
business, which 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.

PRIOR LEGISLATIVE HISTORY:

2012: A.9460 - Passed Assembly

FISCAL IMPLICATIONS:

None noted.


EFFECTIVE DATE:

Immediately

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

                                  5975

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            October 30, 2013
                               ___________

Introduced  by  Sen. LATIMER -- 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09169-01-3

S. 5975                             2

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
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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