Senate Bill S5496

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5496
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                May 3, 2019
                                ___________
 
 Introduced  by  Sen. SKOUFIS -- 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  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.
   §  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 and a new subdivision 10 is added to read
 as follows:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD07144-01-9

 S. 5496                             2
 
   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.
   § 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;
   § 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.
   § 5. This act shall take effect immediately.