NY State Senate Bill 2015-S3390A

Archive: Last Bill Status - In Senate Committee Investigations And Government Operations 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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Actions

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Mar 03, 2016	print number 3390a
Mar 03, 2016	amend (t) and recommit to investigations and government operations
Jan 06, 2016	referred to investigations and government operations
Feb 06, 2015	referred to investigations and government operations

Bill Amendments

Original

A (Active)

2015-S3390 - Details

See Assembly Version of this Bill:: A327
Current Committee:: Senate Investigations And Government Operations
Law Section:: Public Officers Law
Laws Affected:: Amd §89, Pub Off L
Versions Introduced in Other Legislative Sessions:: 2011-2012: A6996
2013-2014: A2057

2015-S3390 - Summary

Relates to proceedings to review adverse determinations relating to access to records.

2015-S3390 - Sponsor Memo

                                BILL NUMBER:S3390

TITLE OF BILL:

An act to amend the public officers law, in relation to attorney's
fees where a person or entity fails to prove that an agency should
properly withhold records

PURPOSE:

To require the payment of attorney's fees to the agency by the
non-prevailing party in a proceeding to stop disclosure of a record.

SUMMARY OF PROVISIONS:

Section one amends subdivision five of section eighty-nine of the
public officers law by adding a new paragraph(i). Paragraph (i)
provides that in any proceeding commenced to review an adverse
determination pursuant to paragraph (c) of section eighty-nine in
which the person or entity initiating the proceeding fails to prevail
by proving that the records at issue may properly be withheld from the
public, the court may direct such person or entity to pay reasonable
attorney's fees and litigation costs to the agency.

Section two provides that that this act shall take effect on the
sixtieth day after it shall have become a law.

JUSTIFICATION:

Subdivision five of section eighty-nine of the FOIL relates to
disclosures that would cause substantial injury to the competitive
position of a commercial enterprise. This is the only grounds upon
which a person or entity may initiate a judicial proceeding to prevent
the government from disclosing records to the public. The government
will then be required to expend time and money to defend its position
that the record should be disclosed, a cost which is passed along to
taxpayers.

Unlike proceedings initiated by individuals who have been denied
access to requested records, this is a situation in which a person or
entity is seeking to block records from being released when the agency
believes the records must be disclosed. It is only fair that those who
initiate such a proceeding and do not prevail are required to pay the
attorney's fees and litigation costs.

LEGISLATIVE HISTORY:

2014: S7570 Referred to Investigations and Government Operations /
A.2057-A Referred to Codes A.6996, of 2011 and 2012, referred to
governmental operations.
Same as S.4754 (Saland), of 2011 and 2012, referred to investigations
and government operations.

FISCAL IMPLICATIONS:

None.


EFFECTIVE DATE:

This act shall take effect on the sixtieth day after it shall have
become law.

2015-S3390 - Bill Text download pdf

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

                                  3390

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            February 6, 2015
                               ___________

Introduced  by  Sen.  LANZA  -- 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, in relation to attorney's  fees
  where a person or entity fails to prove that an agency should properly
  withhold records

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

  Section 1.  Subdivision 5 of section 89 of the public officers law  is
amended by adding a new paragraph (i) to read as follows:
  (I)  IN  ANY  PROCEEDING  COMMENCED TO REVIEW AN ADVERSE DETERMINATION
PURSUANT TO PARAGRAPH (C) OF THIS SUBDIVISION IN  WHICH  THE  PERSON  OR
ENTITY  INITIATING  SUCH  PROCEEDING  FAILS  TO SUBSTANTIALLY PREVAIL BY
PROVING THAT THE RECORDS AT ISSUE MAY  PROPERLY  BE  WITHHELD  FROM  THE
PUBLIC, THE COURT IN SUCH PROCEEDING MAY DIRECT SUCH PERSON OR ENTITY TO
REMIT  TO THE AGENCY INVOLVED REASONABLE ATTORNEY'S FEES AND OTHER LITI-
GATION COSTS REASONABLY INCURRED BY THE AGENCY.
  S 2. This act shall take effect on the sixtieth  day  after  it  shall
have become a law.





 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00099-01-5

2015-S3390A (ACTIVE) - Details

See Assembly Version of this Bill:: A327
Current Committee:: Senate Investigations And Government Operations
Law Section:: Public Officers Law
Laws Affected:: Amd §89, Pub Off L
Versions Introduced in Other Legislative Sessions:: 2011-2012: A6996
2013-2014: A2057

2015-S3390A (ACTIVE) - Summary

Relates to proceedings to review adverse determinations relating to access to records.

2015-S3390A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3390A

 TITLE OF BILL :  An act to amend the public officers law, in relation
to proceedings to review adverse determinations relating to access to
records

 PURPOSE :

To require that a proceeding to stop disclosure of a record be given
preference by the courts and heard in an expedited manner.

 SUMMARY OF PROVISIONS :

Section one amends subdivision five of section eighty-nine of the
public officers law to provide that a proceeding commenced to review
an adverse determination pursuant to paragraph (c) of section
eighty-nine shall be given preference and shall be brought on for
argument on such terms and conditions as the presiding justice may
direct, not to exceed forty-five days. Appeal to the appellate
division of the supreme court must be made in accordance with law, and
must be filed within fifteen days after service by a party upon the
appellant of a copy of the judgment or order appealed from and written
notice of its entry. An appeal taken from an order of the court
requiring disclosure shall be given preference and shall be brought on
for argument on such terms and conditions as the presiding justice may
direct, not to exceed sixty days. This action shall be deemed

abandoned when the party requesting an exclusion from disclosure fails
to serve and file a record and brief within thirty days after the date
of the notice of appeal. Failure by the party requesting an exclusion
from disclosure to serve and file a record and brief within the
allotted time shall result in the dismissal of the appeal.

Section two provides the effective date.

 JUSTIFICATION :

Subdivision five of section eighty-nine of the Freedom of Information
Law relates to disclosures that would cause substantial injury to the
competitive position of a commercial enterprise. This is the only
grounds upon which a person or entity may initiate a judicial
proceeding to prevent the government from disclosing records to the
public. The government will then be required to expend time and money
to defend its position that the record should be disclosed, a cost
which is passed along to taxpayers.

Unlike proceedings initiated by individuals who have been denied
access to requested records, this is a situation in which a person or
entity is seeking to block records from being released when the agency
believes the records must be disclosed. Often, commercial enterprises
initiate these proceedings to cause delays and prevent the release of
records that could affect a business deal or other action. Ensuring
that these proceedings are brought on for argument in an expedited
manner will prevent the use of these challenges as a delay tactic.

 PRIOR LEGISLATIVE HISTORY :

2015: A.327 - Referred to Governmental Operations.
2014: A.2057 - Referred to Government Operations.

 FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
This act shall take effect immediately.

2015-S3390A (ACTIVE) - Bill Text download pdf

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

                                 3390--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            February 6, 2015
                               ___________

Introduced  by  Sen.  LANZA  -- 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 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

AN  ACT  to amend the public officers law, in relation to proceedings to
  review adverse determinations relating to access to records

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

  Section  1. Paragraph (d) of subdivision 5 of section 89 of the public
officers law, as amended by chapter 339 of the laws of 2004, is  amended
to read as follows:
  (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. THE PROCEEDING
SHALL BE GIVEN PREFERENCE AND SHALL BE BROUGHT ON FOR ARGUMENT  ON  SUCH
TERMS  AND CONDITIONS AS THE PRESIDING JUSTICE MAY DIRECT, NOT TO EXCEED
FORTY-FIVE DAYS. APPEAL TO THE APPELLATE DIVISION OF THE  SUPREME  COURT
MUST  BE  MADE  IN ACCORDANCE WITH LAW, AND MUST BE FILED WITHIN FIFTEEN
DAYS AFTER SERVICE BY A PARTY UPON THE APPELLANT OF A COPY OF THE  JUDG-
MENT  OR  ORDER APPEALED FROM AND WRITTEN NOTICE OF ITS ENTRY. AN APPEAL
TAKEN FROM AN ORDER OF THE COURT REQUIRING  DISCLOSURE  SHALL  BE  GIVEN
PREFERENCE AND SHALL BE BROUGHT ON FOR ARGUMENT ON SUCH TERMS AND CONDI-
TIONS  AS  THE  PRESIDING  JUSTICE MAY DIRECT, NOT TO EXCEED SIXTY DAYS.
THIS ACTION SHALL BE DEEMED  ABANDONED  WHEN  THE  PARTY  REQUESTING  AN
EXCLUSION  FROM  DISCLOSURE  FAILS  TO SERVE AND FILE A RECORD AND BRIEF

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00099-05-6

S. 3390--A                          2

WITHIN THIRTY DAYS AFTER THE DATE OF THE NOTICE OF APPEAL.   FAILURE  BY
THE  PARTY  REQUESTING  AN EXCLUSION FROM DISCLOSURE TO SERVE AND FILE A
RECORD AND BRIEF WITHIN THE ALLOTTED TIME SHALL RESULT IN THE  DISMISSAL
OF THE APPEAL.
  S 2. This act shall take effect immediately.

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Senate Bill S3390A

Sponsored By

Archive: Last Bill Status - In Senate Committee Investigations And Government Operations Committee

Actions

Bill Amendments

2015-S3390 - Details

2015-S3390 - Summary

2015-S3390 - Sponsor Memo

2015-S3390 - Bill Text download pdf

2015-S3390A (ACTIVE) - Details

2015-S3390A (ACTIVE) - Summary

2015-S3390A (ACTIVE) - Sponsor Memo

2015-S3390A (ACTIVE) - Bill Text download pdf

Comments

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Sponsored By

Andrew J. Lanza

Archive: Last Bill Status - In Senate Committee Investigations And Government Operations Committee

Actions

Bill Amendments

2015-S3390 - Details

2015-S3390 - Summary

2015-S3390 - Sponsor Memo

2015-S3390 - Bill Text download pdf

2015-S3390A (ACTIVE) - Details

2015-S3390A (ACTIVE) - Summary

2015-S3390A (ACTIVE) - Sponsor Memo

2015-S3390A (ACTIVE) - Bill Text download pdf

Comments