Senate Bill S4585

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4585
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             February 21, 2017
                                ___________
 
 Introduced  by  Sens.  KRUEGER,  MONTGOMERY,  PERKINS  -- read twice and
   ordered printed, and when printed to be committed to the Committee  on
   Investigations and Government 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. Paragraph (a) of subdivision 4 of section 89 of the  public
 officers  law,  as amended by chapter 22 of the laws of 2005, is amended
 and a new paragraph (a-1) is added to read as follows:
   (a) Except as provided in subdivision five of this section, any person
 denied access to a record may within thirty days appeal in writing  such
 denial  to the head, chief executive or governing body of the entity, or
 the person therefor designated by such head, chief executive, or govern-
 ing 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.
              

                                                            LBD05805-01-7

 S. 4585                             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  REQUEST-
 ING  THE  RECORD  OF  ITS  INTENT TO INSTITUTE SUCH A PROCEEDING, IN THE
 MANNER PRESCRIBED FOR THE SERVICE OF A SUMMONS, WITHIN  TWENTY  BUSINESS
 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.
   § 2. The executive law is amended by adding a new section 63-e to read
 as follows:
   §  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.
   § 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.