S T A T E O F N E W Y O R K
________________________________________________________________________
4468
2015-2016 Regular Sessions
I N A S S E M B L Y
February 2, 2015
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Introduced by M. of A. ENGLEBRIGHT, SILVER, GLICK, GALEF, MARKEY,
LAVINE, PEOPLES-STOKES, SCHIMEL, ROSENTHAL, ABINANTI -- Multi-Spon-
sored by -- M. of A. FARRELL, PERRY -- read once and referred to the
Committee on Governmental Operations
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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07409-01-5
A. 4468 2
the laws of 1981, is amended and a new subdivision 10 is added 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
TO SUCH RECORDS PURSUANT TO THE CIVIL PRACTICE LAW AND RULES, THE CRIMI-
NAL PROCEDURE LAW, OR ANY OTHER LAW.
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 3. The opening paragraph and paragraph (e) of subdivision 2 of
section 87 of the public officers law, as added by chapter 933 of the
laws of 1977, are 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:
(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 4. 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 5. This act shall take effect immediately.