S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4633
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 21, 2023
                                ___________
 
 Introduced  by M. of A. MCGOWAN -- read once and referred to the Commit-
   tee on Governmental Employees
 
 AN ACT to amend the public officers law, in relation to the  failure  to
   produce  records in response to a FOIL request; and to amend the penal
   law, in relation to criminalizing the failure to comply with the free-
   dom of information law

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Section 86 of the public officers law is amended by adding
 two new subdivisions 12 and 13 to read as follows:
   12. "STATE AGENCY" MEANS ANY STATE DEPARTMENT,  DIVISION,  COMMISSION,
 PUBLIC AUTHORITY OR PUBLIC CORPORATION.
   13.  "HEAD  OF  AGENCY"  MEANS  THE COMMISSIONER, ACTING COMMISSIONER,
 DEPUTY COMMISSIONER, SUPERINTENDENT, DIRECTOR, DEPUTY DIRECTOR, OR CHIEF
 EXECUTIVE OFFICER OF A STATE AGENCY.
   § 2. Paragraph (a) of subdivision 3 of section 89 of the public  offi-
 cers  law,  as amended by chapter 223 of the laws of 2008, is amended to
 read as follows:
   (a) (1) Each entity subject to the provisions of this article,  within
 five  business  days  of  the  receipt of a written request for a record
 reasonably described, shall:
   (I) make such record available to the person requesting it[,];
   (II) deny such request in writing; or
   (III) furnish a written acknowledgement of the receipt of such request
 and a statement of the approximate date, which shall be reasonable under
 the circumstances of the request, when such request will be  granted  or
 denied,  including,  where  appropriate,  a statement that access to the
 record will be determined in accordance with subdivision  five  of  this
 section.
   (2)  ANY  ENTITY  WHICH  FURNISHES  SUCH A WRITTEN ACKNOWLEDGEMENT AND
 STATEMENT SHALL HAVE UP TO THIRTY DAYS FROM THE DATE OF THE  REQUEST  TO

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD05635-01-3
              

 A. 4633                             2
 
 GRANT  OR  DENY  SUCH  REQUEST,  AND WHERE SUCH REQUEST IS GRANTED, SUCH
 ENTITY SHALL HAVE UP TO A MAXIMUM OF NINETY DAYS FROM THE  DATE  OF  THE
 REQUEST TO MAKE SUCH RECORD AVAILABLE TO THE PERSON REQUESTING IT.  WHEN
 A  STATE  AGENCY  GRANTS  A  REQUEST  FOR  RECORDS FROM A PERSON AND THE
 RECORDS ARE NOT MADE AVAILABLE WITHIN THIRTY DAYS OF SUCH  REQUEST,  THE
 HEAD  OF SUCH AGENCY SHALL HAVE A DUTY TO REVIEW SUCH REQUEST AND DIRECT
 SUCH AGENCY, IN WRITING, TO MAKE THE RECORDS AVAILABLE TO THE PERSON WHO
 MADE THE REQUEST NO LATER  THAN  NINETY  DAYS  FROM  THE  DATE  OF  SUCH
 REQUEST,  AND  TO  ENSURE  SUCH RECORDS ARE MADE AVAILABLE. WHEN A STATE
 AGENCY RECEIVES A REQUEST FOR RECORDS AND PROVIDES A  STATEMENT  OF  THE
 APPROXIMATE  DATE  WHEN SUCH REQUEST WILL BE GRANTED OR DENIED, THE HEAD
 OF SUCH AGENCY SHALL HAVE A DUTY TO DIRECT SUCH AGENCY, IN  WRITING,  TO
 MAKE  SUCH DETERMINATION NO LATER THAN THIRTY DAYS FROM THE DATE OF SUCH
 REQUEST, AND TO ENSURE SUCH DETERMINATION IS MADE BY SUCH AGENCY  WITHIN
 SUCH  TIME.  WHEN A STATE AGENCY HAS NOT DENIED A REQUEST FOR RECORDS OR
 MADE RECORDS AVAILABLE WITHIN THIRTY DAYS OF A REQUEST FOR RECORDS,  THE
 HEAD  OF SUCH AGENCY SHALL SIGN A CERTIFICATION, UNDER PENALTY OF PERJU-
 RY, WHICH SHALL BE SIGNED AND POSTED  ON  THE  AGENCY'S  WEBSITE  WITHIN
 FORTY-FIVE DAYS OF THE DATE OF THE REQUEST, AND WHICH SHALL INCLUDE:
   (I) WHETHER THE HEAD OF SUCH AGENCY REVIEWED THE REQUEST FOR RECORDS;
   (II)  WHETHER THE HEAD OF SUCH AGENCY DIRECTED THE AGENCY, IN WRITING,
 TO MAKE A DETERMINATION TO GRANT OR DENY SUCH REQUEST WITHIN THIRTY DAYS
 FROM THE DATE OF SUCH REQUEST;
   (III) WHETHER THE REQUEST WAS GRANTED OR  DENIED  BY  THE  AGENCY,  OR
 WHETHER  THE AGENCY FAILED TO MAKE A DETERMINATION TO GRANT OR DENY SUCH
 REQUEST; AND
   (IV) WHETHER THE HEAD OF SUCH AGENCY DIRECTED, IN  WRITING,  THAT  THE
 RECORDS BE MADE AVAILABLE TO THE PERSON WHO REQUESTED THEM NO LATER THAN
 NINETY DAYS AFTER THE DATE OF SUCH REQUEST. WHEN A STATE AGENCY RECEIVES
 A REQUEST FOR RECORDS, AND A DETERMINATION WHETHER TO GRANT OR DENY SUCH
 REQUEST  HAS  NOT BEEN MADE WITHIN THIRTY DAYS OF SUCH REQUEST, THE HEAD
 OF SUCH AGENCY SHALL HAVE A DUTY TO NOTIFY THE GOVERNOR THAT THE  AGENCY
 HAS  FAILED TO MAKE SUCH DETERMINATION, AS REQUIRED BY THIS ARTICLE, AND
 TO PROVIDE A COPY OF SUCH REQUEST. UPON  RECEIPT  OF  SUCH  NOTICE,  THE
 GOVERNOR,  AND  ANY  SENIOR  STAFF MEMBER OF THE GOVERNOR, SHALL HAVE AN
 AFFIRMATIVE DUTY TO REVIEW SUCH REQUEST AND TO DIRECT SUCH STATE AGENCY,
 IN WRITING, TO MAKE  A  DETERMINATION  WITHIN  FORTY-FIVE  DAYS  OF  THE
 REQUEST  AND  TO  DIRECT  SUCH  STATE  AGENCY,  IN  WRITING, TO MAKE THE
 REQUESTED RECORDS AVAILABLE WITHIN NINETY DAYS OF THE REQUEST,  IF  SUCH
 AGENCY  GRANTS SUCH REQUEST. IF SUCH STATE AGENCY FAILS TO MAKE A DETER-
 MINATION TO GRANT OR DENY  A  REQUEST  WITHIN  FORTY-FIVE  DAYS  OF  THE
 REQUEST,  OR FAILS TO MAKE THE REQUESTED RECORDS AVAILABLE WITHIN NINETY
 DAYS OF THE REQUEST, THE GOVERNOR, AND ANY SENIOR APPOINTED STAFF MEMBER
 OF THE GOVERNOR, SHALL EACH SIGN A SEPARATE CERTIFICATION, UNDER PENALTY
 OF PERJURY, WHICH SHALL BE SIGNED AND POSTED ON THE  GOVERNOR'S  WEBSITE
 WITHIN  SIXTY  DAYS AFTER THE RECORD REQUEST AND SHALL STATE WHETHER THE
 GOVERNOR, OR ANY SENIOR APPOINTED  STAFF  MEMBER,  DIRECTED  SUCH  STATE
 AGENCY,  IN  WRITING,  TO MAKE A DETERMINATION WITHIN FORTY-FIVE DAYS OF
 THE REQUEST AND WHETHER THE GOVERNOR,  OR  ANY  SENIOR  APPOINTED  STAFF
 MEMBER,  DIRECTED SUCH STATE AGENCY TO MAKE THE REQUESTED RECORDS AVAIL-
 ABLE WITHIN NINETY DAYS OF THE REQUEST,  IF  SUCH  AGENCY  GRANTED  SUCH
 REQUEST.
   (3)  An  agency shall not deny a request on the basis that the request
 is voluminous or that locating or reviewing  the  requested  records  or
 providing  the  requested  copies is burdensome because the agency lacks
 sufficient staffing or on any other basis if the agency  may  engage  an
 A. 4633                             3
 
 outside  professional  service  to provide copying, programming or other
 services required to provide the copy, the costs of which the agency may
 recover pursuant to paragraph (c) of subdivision one of section  eighty-
 seven  of  this article. An agency may require a person requesting lists
 of names and addresses to provide  a  written  certification  that  such
 person  will  not use such lists of names and addresses for solicitation
 or fund-raising purposes and will  not  sell,  give  or  otherwise  make
 available  such lists of names and addresses to any other person for the
 purpose of allowing that person to use such lists of names and addresses
 for solicitation or fund-raising purposes. If an  agency  determines  to
 grant  a  request  in  whole  or  in  part, and if circumstances prevent
 disclosure to the person requesting the record or records within  twenty
 business days from the date of the acknowledgement of the receipt of the
 request,  the  agency  shall  state, in writing, both the reason for the
 inability to grant the request within twenty business days  and  a  date
 certain within a reasonable period, depending on the circumstances, when
 the  request  will  be granted in whole or in part.  Upon payment of, or
 offer to pay, the fee prescribed therefor, the entity  shall  provide  a
 copy  of  such  record and certify to the correctness of such copy if so
 requested, or as the case may be, shall certify that it  does  not  have
 possession  of  such  record  or  that such record cannot be found after
 diligent search. Nothing in this article shall be construed  to  require
 any  entity  to  prepare  any record not possessed or maintained by such
 entity except the records specified  in  subdivision  three  of  section
 eighty-seven and subdivision three of section eighty-eight of this arti-
 cle.  When  an agency has the ability to retrieve or extract a record or
 data maintained in a computer storage system with reasonable effort,  it
 shall  be  required  to do so. When doing so requires less employee time
 than engaging in manual  retrieval  or  redactions  from  non-electronic
 records, the agency shall be required to retrieve or extract such record
 or  data  electronically. Any programming necessary to retrieve a record
 maintained in a computer storage system and to transfer that  record  to
 the  medium  requested by a person or to allow the transferred record to
 be read or printed shall not be deemed to be the preparation or creation
 of a new record.
   § 3. Title P of the penal law is amended by adding a new  article  285
 to read as follows:
                                ARTICLE 285
                OFFENSES AGAINST TRANSPARENCY IN GOVERNMENT
 SECTION 285.05 CRIMINAL  FAILURE  TO COMPLY WITH THE FREEDOM OF INFORMA-
                  TION LAW.
 § 285.05 CRIMINAL FAILURE TO COMPLY WITH THE FREEDOM OF INFORMATION LAW.
   A PERSON IS GUILTY OF CRIMINAL FAILURE TO COMPLY WITH THE  FREEDOM  OF
 INFORMATION LAW WHEN:
   1.  SUCH  PERSON IS THE GOVERNOR, ANY SENIOR APPOINTED STAFF MEMBER OF
 THE GOVERNOR, OR THE HEAD OF A STATE AGENCY;
   2. PURSUANT TO SECTION EIGHTY-NINE OF THE PUBLIC  OFFICERS  LAW,  SUCH
 PERSON HAS:
   A. A DUTY TO REVIEW A REQUEST FOR RECORDS;
   B.  A  DUTY TO DIRECT A STATE AGENCY TO MAKE A DETERMINATION, IN WRIT-
 ING;
   C. A DUTY TO DIRECT A STATE AGENCY, IN WRITING, TO MAKE RECORDS AVAIL-
 ABLE IN RESPONSE TO A REQUEST FOR RECORDS, OR
   D. A DUTY TO PROVIDE A SIGNED CERTIFICATION; AND
   3. SUCH PERSON, WITH INTENT, FAILS TO REVIEW A  REQUEST  FOR  RECORDS,
 FAILS TO DIRECT A STATE AGENCY TO MAKE A DETERMINATION IN WRITING, FAILS
 A. 4633                             4
 
 TO  DIRECT A STATE AGENCY TO MAKE RECORDS AVAILABLE IN WRITING, OR FAILS
 TO PROVIDE A SIGNED CERTIFICATION. NOTWITHSTANDING ANY LAW TO  CONTRARY,
 THE  STATE  OR  ANY STATE AGENCY SHALL NOT INDEMNIFY OR SAVE HARMLESS OR
 PAY  ANY  PENALTY  OR LEGAL FEES OF ANY PERSON WHO IS GUILTY OF CRIMINAL
 FAILURE TO COMPLY WITH THE FREEDOM OF INFORMATION LAW. ALL  THOSE  FOUND
 GUILTY OF CRIMINAL FAILURE TO COMPLY WITH THE FREEDOM OF INFORMATION LAW
 SHALL  NOT  USE PUBLIC FUNDS, OR MONIES FROM POLITICAL ACTION COMMITTEES
 OR CAMPAIGN COMMITTEES FOR THE PAYMENT OF FINES OR LEGAL FEES.
   CRIMINAL FAILURE TO COMPLY WITH THE FREEDOM OF INFORMATION  LAW  IS  A
 CLASS B MISDEMEANOR.
   §  4.  This  act shall take effect on the ninetieth day after it shall
 have become a law.