S T A T E O F N E W Y O R K
________________________________________________________________________
4683
2021-2022 Regular Sessions
I N A S S E M B L Y
February 4, 2021
___________
Introduced by M. of A. STECK -- read once and referred to the Committee
on Governmental Operations
AN ACT to amend the public officers law, in relation to the provision
for a committee on open government
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 4 of section 89 of the public officers law, as
amended by chapter 22 of the laws of 2005, paragraph (c) as amended by
chapter 453 of the laws of 2017 and paragraph (d) as added by chapter
487 of the laws of 2016, is amended to read as follows:
4. (a) Except as provided in subdivision five of this section, any
person denied access to a record may within thirty days appeal in writ-
ing such denial to the [head, chief executive or governing body of the
entity, or the person therefor designated by such head, chief executive,
or governing body,] COMMITTEE ON OPEN GOVERNMENT 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 there-
on. Failure by an agency to conform to the provisions of subdivision
three of this section shall constitute a denial.]
(b) Except as provided in subdivision five of this section, a person
denied access to a record in an appeal determination under the
provisions of paragraph (a) of this subdivision may bring a proceeding
for review of such denial pursuant to article seventy-eight of the civil
practice law and rules. In the event that access to any record is denied
pursuant to the provisions of subdivision two of section eighty-seven of
this article, the [agency involved] COMMITTEE ON OPEN GOVERNMENT shall
have the burden of proving that such record falls within the provisions
of such subdivision two. Failure by [an agency] THE COMMITTEE ON OPEN
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07818-01-1
A. 4683 2
GOVERNMENT to conform to the provisions of paragraph (a) of this subdi-
vision shall constitute a denial.
(c) The court in such a proceeding: (i) may assess, against such agen-
cy involved, reasonable attorney's fees and other litigation costs
reasonably incurred by such person in any case under the provisions of
this section in which such person has substantially prevailed, and when
the agency failed to respond to a request or THE COMMITTEE ON OPEN
GOVERNMENT FAILED TO RESPOND TO AN appeal within the statutory time; and
(ii) shall assess, against such agency involved, reasonable attorney's
fees and other litigation costs reasonably incurred by such person in
any case under the provisions of this section in which such person has
substantially prevailed and the court finds that the agency had no
reasonable basis for denying access.
(d) (i) Appeal to the appellate division of the supreme court must be
made in accordance with subdivision (a) of section fifty-five hundred
thirteen of the civil practice law and rules.
(ii) An appeal from [an agency] THE COMMITTEE ON OPEN GOVERNMENT taken
from an order of the court requiring disclosure of any or all records
sought:
(A) shall be given preference;
(B) shall be brought on for argument on such terms and conditions as
the presiding justice may direct, upon application of any party to the
proceeding; and
(C) shall be deemed abandoned if the [agency] COMMITTEE ON OPEN
GOVERNMENT fails to serve and file a record and brief within sixty days
after the date of service upon the petitioner of the notice of appeal,
unless consent to further extension is given by all parties, or unless
further extension is granted by the court upon such terms as may be just
and upon good cause shown.
§ 2. Subparagraph 1 of paragraph (a) of subdivision 5 of section 89 of
the public officers law, as amended by chapter 403 of the laws of 2003,
is amended to read as follows:
(1) A person acting pursuant to law or regulation who, subsequent to
the effective date of this subdivision, submits any information to any
state agency may, at the time of submission, request that the agency
except such information from disclosure under paragraph (d) of subdivi-
sion two of section eighty-seven of this article. Where the request
itself contains information which if disclosed would defeat the purpose
for which the exception is sought, such information shall also be
excepted from disclosure UNDER PARAGRAPH (D) OF SUBDIVISION TWO OF
SECTION EIGHTY-SEVEN OF THIS ARTICLE. WHERE THE REQUEST ITSELF CONTAINS
INFORMATION WHICH IF DISCLOSED WOULD DEFEAT THE PURPOSE FOR WHICH THE
EXCEPTION IS SOUGHT, SUCH INFORMATION SHALL ALSO BE EXCEPTED FROM
DISCLOSURE.
§ 3. Subparagraph 1 of paragraph (c) of subdivision 5 of section 89 of
the public officers law, as added by chapter 890 of the laws of 1981, is
amended to read as follows:
(1) Within seven business days of receipt of written notice denying
the request, the person may file a written appeal from the determination
of the [agency with the head of the agency, the chief executive officer
or governing body or their designated representatives] COMMITTEE ON OPEN
GOVERNMENT.
§ 4. This act shall take effect immediately.