NY State Senate Bill 2021-S1506

Senate Bill S1506

2021-2022 Legislative Session

Requires entities that submit records to state agencies that are excepted from disclosure under FOIL to periodically re-apply for the exception

download bill text pdf

Archive: Last Bill Status - In Senate Committee Rules 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

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 03, 2022	committed to rules
Apr 27, 2022	advanced to third reading
Apr 26, 2022	2nd report cal.
Apr 25, 2022	1st report cal.792
Jan 05, 2022	referred to investigations and government operations
Jan 12, 2021	referred to investigations and government operations

Votes

- Apr 25, 2022 - Investigations And Government Operations Committee Vote
  S1506
  
  5
  
  Aye
  
  0
  
  Nay
  
  2
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Investigations And Government Operations Committee Vote: Apr 25, 2022
      
      aye (5)
      
      Biaggi
      
      Gaughran
      
      Kaminsky
      
      Reichlin-Melnick
      
      Skoufis
      
      aye wr (2)
      
      O'Mara
      
      Palumbo

2021-S1506 (ACTIVE) - Details

See Assembly Version of this Bill:: A6895
Current Committee:: Senate Rules
Law Section:: Public Officers Law
Laws Affected:: Amd §89, Pub Off L
Versions Introduced in Other Legislative Sessions:: 2013-2014: A6110
2015-2016: S2921, A6637
2017-2018: S79, A3433
2019-2020: S27, A4039
2023-2024: S3257

2021-S1506 (ACTIVE) - Summary

Requires entities that submit records to state agencies that are excepted from disclosure under FOIL to periodically re-apply for the exception.

2021-S1506 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S1506

SPONSOR: HOYLMAN
 
TITLE OF BILL:

An act to amend the public officers law, in relation to requiring enti-
ties that submit records to state agencies that are excepted from
disclosure under the freedom of information law to periodically re-apply
for the exception

 
PURPOSE OR GENERAL IDEA OF THE BILL:

The purpose of this bill is to provide for greater disclosure under the
Freedom of Information Law.

 
SUMMARY OF SPECIFIC PROVISIONS:

This bill would require that, subsequent to the effective date, when an
entity submits a request to a state agency to have trade secrets
excluded from release under the Freedom of Information Law, the request
must specifically identify which portions of the record are to be

excluded. The requester would also be able to set an expiration date for
the exclusions, provided that such a date is not greater than 3 years.
If the state agency agrees to the exclusions and the submitter did not
set an expiration date, after 3 years the submitter must apply to the
agency for a 3 year extension, upon which the agency must make a deter-
mination as to if the exclusions should be extended. If the submitter
does not apply for the extension, the exclusion will be considered to
have expired. The bill also makes some technical changes to the Public
Meetings Law.

 
JUSTIFICATION:

Under current law, when an entity submits records to a state agency,
that entity may identify portions of those records that should be
excluded from release under the Freedom of Information Law (FOIL) as
trade secrets. If approved, the exclusion remains in force until a FOIL
request is made for those records. The agency must then contact the
entity to determine if the records must continue to be with- held or if
they can be released. If no FOIL request is made, the exclusion remains
in force indefinitely.

This bill would streamline this process by requiring entities to reapply
for the exclusion every 3 years. If an entity does not re-apply, the
exclusion is considered to be expired and the document can be released
when a FOIL request is made.

 
PRIOR LEGISLATIVE HISTORY:

S.0027 of 2019-2020 (Hoylman): Died in Investigations and Government
Operations
A.4039 of 2019-2020 (Englebright): Died in Governmental Operations
S.0079 of 2017-2018 (Hoylman): Died in Investigations and Government
Operations
A.3433 of 2017-2018 (Englebright): Died in Governmental Operations
S.2921-A of 2015-2016 (Hoylman): Died in Investigations & Government
Operations
A.6637-A of 2015-2016 (Englebright): Died in Governmental Operations
A.6110 of 2013-2014 (Englebright): Died in Governmental Operations
 
FISCAL IMPLICATIONS:

To be determined.

 
EFFECTIVE DATE:
The act shall take effect immediately.

2021-S1506 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1506
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 12, 2021
                                ___________
 
 Introduced  by  Sen. HOYLMAN -- 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  enti-
   ties  that  submit  records  to  state agencies that are excepted from
   disclosure under the freedom of information law to periodically re-ap-
   ply for the exception
 
   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, as
 added by chapter 890 of the laws of 1981, paragraph (a)  as  amended  by
 chapter  403 of the laws of 2003 and paragraph (d) as amended by chapter
 707 of the laws of 2019, is amended to read as follows:
   5. (a) (1) A person acting pursuant to law or regulation  who,  subse-
 quent 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
 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.
   (1-a) A person or entity who submits or otherwise makes available  any
 records  to  any  agency,  may,  at  any time, identify those records or
 portions thereof that may contain critical  infrastructure  information,
 and  request  that  the  agency  that maintains such records except such
 information from disclosure under subdivision two of section eighty-sev-
 en 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.
   (2)  (I)  The  request  for  an  exception  shall be in writing, SHALL
 SPECIFICALLY IDENTIFY WHICH PORTIONS OF THE RECORD ARE  THE  SUBJECT  OF
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD05698-01-1

 S. 1506                             2
 
 THE  REQUEST  FOR  EXCEPTION  and  state the reasons why the information
 should be excepted, FOR A DEFINED PERIOD OF TIME, from disclosure.   THE
 SUBMITTER  MAY ALSO PROVIDE A DATE BY WHICH SUCH EXCEPTION SHALL EXPIRE,
 PROVIDED  THAT  SUCH  DATE SHALL NOT EXCEED THREE YEARS FROM THE TIME OF
 THE AGENCY'S RECEIPT OF THE REQUEST FOR AN EXCEPTION.
   (II) NOT LESS THAN SIXTY DAYS PRIOR TO  THE  EXPIRATION  OF  THE  THEN
 CURRENT  TERM  OF  THE EXCEPTION REQUEST, THE SUBMITTER MAY APPLY TO THE
 AGENCY FOR A THREE-YEAR EXTENSION OF ITS EXCEPTION REQUEST. UPON  TIMELY
 RECEIPT OF A REQUEST FOR AN EXTENSION OF AN EXCEPTION REQUEST, AN AGENCY
 SHALL  REVIEW  THE  APPLICATION  AND  EITHER GRANT OR DENY THE EXTENSION
 REQUEST. A DENIAL OF AN EXTENSION REQUEST MAY BE APPEALED BY THE SUBMIT-
 TER PURSUANT TO PARAGRAPH (C) OF  THIS  SUBDIVISION.  IF  THE  SUBMITTER
 FAILS  TO  APPLY  FOR AN EXTENSION, THE EXCEPTION SHALL BE CONSIDERED TO
 HAVE EXPIRED.
   (3) Information submitted SUBSEQUENT TO  THE  EFFECTIVE  DATE  OF  THE
 CHAPTER  OF THE LAWS OF TWO THOUSAND TWENTY-ONE THAT AMENDED THIS SUBDI-
 VISION AND as provided in subparagraphs one and one-a of this  paragraph
 shall  be  excepted  from disclosure FOR A DEFINED PERIOD OF TIME and be
 maintained apart by the agency from all other records until THE  EXPIRA-
 TION  OF  THE  SUBMITTER'S  EXCEPTION  REQUEST OR fifteen days after the
 entitlement to such  exception  has  been  finally  determined  or  such
 further time as ordered by a court of competent jurisdiction.
   (b)  [On]  DURING  THE  EFFECTIVE PERIOD OF AN EXCEPTION REQUEST UNDER
 THIS SUBDIVISION, ON the initiative of the agency at any time,  or  upon
 the request of any person for a record excepted from disclosure pursuant
 to this subdivision, the agency shall:
   (1)  inform  the  person  who  requested the exception of the agency's
 intention to determine whether  such  exception  should  be  granted  or
 continued;
   (2) permit the person who requested the exception, within ten business
 days  of  receipt  of  notification from the agency, to submit a written
 statement of the necessity for the  granting  or  continuation  of  such
 exception;
   (3)  within  seven business days of receipt of such written statement,
 or within seven business days of the expiration of the period prescribed
 for submission of such statement, issue a written  determination  grant-
 ing,  continuing  or  terminating such exception and stating the reasons
 therefor; copies of such determination shall be served upon the  person,
 if  any,  requesting the record, the person who requested the exception,
 and the committee on [public access to records] OPEN GOVERNMENT.
   (c) A denial of an exception from disclosure under  paragraph  (b)  of
 this  subdivision  may be appealed by the person submitting the informa-
 tion and a denial of access to the record may be appealed by the  person
 requesting the record in accordance with this subdivision:
   (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.
   (2)  The  appeal  shall  be determined within ten business days of the
 receipt of the appeal. Written notice  of  the  determination  shall  be
 served  upon  the  person, if any, requesting the record, the person who
 requested the exception and the committee on [public access to  records]
 OPEN  GOVERNMENT.    The notice shall contain a statement of the reasons
 for the determination.
   (d) (i) A proceeding to review an adverse  determination  pursuant  to
 paragraph  (c)  of this subdivision may be commenced pursuant to article

 S. 1506                             3
 
 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.
   (ii) 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.
   (iii) An appeal taken from an order of the court requiring disclosure:
   (A) shall be given preference; and
   (B) shall be brought on for argument on such terms and  conditions  as
 the  presiding  justice may direct, upon application by any party to the
 proceeding; and
   (C) shall be deemed abandoned when the party requesting  an  exclusion
 from  disclosure fails to serve and file a record and brief within sixty
 days after the date of the notice of appeal, unless consent  of  further
 extension is given by all parties, or unless further extension is grant-
 ed  by  the  court  upon  such  terms as may be just and upon good cause
 shown.
   (e) The person requesting an exception  from  disclosure  pursuant  to
 this  subdivision  shall  in  all proceedings have the burden of proving
 entitlement to the exception.
   (f) Where the agency denies access to a record pursuant  to  paragraph
 [(d)  of] (B) OF THIS SUBDIVISION IN CONJUNCTION WITH subdivision two of
 section eighty-seven of this article, the agency shall have  the  burden
 of  proving  that  the record falls within the provisions of such excep-
 tion.
   (g) Nothing in this subdivision shall be construed to deny any  person
 access,  pursuant  to  the  remaining provisions of this article, to any
 record or part excepted from disclosure upon the express written consent
 of the person who had requested the exception.
   (h) As used in this subdivision the term "agency"  or  "state  agency"
 means  only  a  state  department,  board,  bureau, division, council or
 office and any public corporation the  majority  of  whose  members  are
 appointed by the governor.
   § 2. This act shall take effect immediately.

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