Legislation

Search OpenLegislation Statutes
This entry was published on 2021-09-10
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
SECTION 87
Access to agency records
Public Officers (PBO) CHAPTER 47, ARTICLE 6
§ 87. Access to agency records. 1. (a) Within sixty days after the
effective date of this article, the governing body of each public
corporation shall promulgate uniform rules and regulations for all
agencies in such public corporation pursuant to such general rules and
regulations as may be promulgated by the committee on open government in
conformity with the provisions of this article, pertaining to the
administration of this article.

(b) Each agency shall promulgate rules and regulations, in conformity
with this article and applicable rules and regulations promulgated
pursuant to the provisions of paragraph (a) of this subdivision, and
pursuant to such general rules and regulations as may be promulgated by
the committee on open government in conformity with the provisions of
this article, pertaining to the availability of records and procedures
to be followed, including, but not limited to:

i. the times and places such records are available;

ii. the persons from whom such records may be obtained, and

iii. the fees for copies of records which shall not exceed twenty-five
cents per photocopy not in excess of nine inches by fourteen inches, or
the actual cost of reproducing any other record in accordance with the
provisions of paragraph (c) of this subdivision, except when a different
fee is otherwise prescribed by statute.

(c) In determining the actual cost of reproducing a record, an agency
may include only:

i. an amount equal to the hourly salary attributed to the lowest paid
agency employee who has the necessary skill required to prepare a copy
of the requested record;

ii. the actual cost of the storage devices or media provided to the
person making the request in complying with such request;

iii. the actual cost to the agency of engaging an outside professional
service to prepare a copy of a record, but only when an agency's
information technology equipment is inadequate to prepare a copy, if
such service is used to prepare the copy; and

iv. preparing a copy shall not include search time or administrative
costs, and no fee shall be charged unless at least two hours of agency
employee time is needed to prepare a copy of the record requested. A
person requesting a record shall be informed of the estimated cost of
preparing a copy of the record if more than two hours of an agency
employee's time is needed, or if an outside professional service would
be retained to prepare a copy of the record.

2. 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:

(a) are specifically exempted from disclosure by state or federal
statute;

(b) if disclosed would constitute an unwarranted invasion of personal
privacy under the provisions of subdivision two of section eighty-nine
of this article;

(c) if disclosed would impair present or imminent contract awards or
collective bargaining negotiations;

(d) are trade secrets or are submitted to an agency by a commercial
enterprise or derived from information obtained from a commercial
enterprise and which if disclosed would cause substantial injury to the
competitive position of the subject enterprise;

(e) are compiled for law enforcement purposes and which, if disclosed,
would:

i. interfere with law enforcement investigations or judicial
proceedings;

ii. deprive a person of a right to a fair trial or impartial
adjudication;

iii. identify a confidential source or disclose confidential
information relating to a criminal investigation; or

iv. reveal criminal investigative techniques or procedures, except
routine techniques and procedures;

(f) if disclosed could endanger the life or safety of any person;

(g) are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations;

iv. external audits, including but not limited to audits performed by
the comptroller and the federal government; or

(h) are examination questions or answers which are requested prior to
the final administration of such questions.

(i) if disclosed, would jeopardize the capacity of an agency or an
entity that has shared information with an agency to guarantee the
security of its information technology assets, such assets encompassing
both electronic information systems and infrastructures; or

* (j) are photographs, microphotographs, videotape or other recorded
images prepared under authority of section eleven hundred eleven-a of
the vehicle and traffic law.

* NB Repealed December 1, 2024

* (k) are photographs, microphotographs, videotape or other recorded
images prepared under authority of section eleven hundred eleven-b of
the vehicle and traffic law.

* NB Repealed December 1, 2024

* (l) are photographs, microphotographs, videotape or other recorded
images produced by a bus lane photo device prepared under authority of
section eleven hundred eleven-c of the vehicle and traffic law.

* NB Repealed September 20, 2025

* (m) are photographs, microphotographs, videotape or other recorded
images prepared under the authority of section eleven hundred eighty-b
of the vehicle and traffic law.

* NB Repealed July 1, 2022

* (n) are photographs, microphotographs, videotape or other recorded
images prepared under authority of section eleven hundred eleven-d of
the vehicle and traffic law.

* NB Repealed December 1, 2024

* (o) are photographs, microphotographs, videotape or other recorded
images prepared under authority of section eleven hundred eleven-e of
the vehicle and traffic law.

* NB Repealed December 1, 2024

* (p) are data or images produced by an electronic toll collection
system under authority of article forty-four-C of the vehicle and
traffic law and in title three of article three of the public
authorities law.

* NB There are 2 par (p)'s

* (p) are photographs, microphotographs, videotape or other recorded
images prepared under the authority of section eleven hundred eighty-d
of the vehicle and traffic law.

* NB There are 2 par (p)'s

* NB Repealed September 6, 2024

* (q) are photographs, microphotographs, videotape or other recorded
images prepared under authority of section eleven hundred seventy-four-a
of the vehicle and traffic law.

* NB Repealed December 1, 2024

* (r) are photographs, microphotographs, videotape or other recorded
images prepared under the authority of section eleven hundred eighty-e
of the vehicle and traffic law.

* NB Effective October 6, 2021

* NB Repealed October 6, 2026

3. Each agency shall maintain:

(a) a record of the final vote of each member in every agency
proceeding in which the member votes;

(b) a record setting forth the name, public office address, title and
salary of every officer or employee of the agency; and

(c) a reasonably detailed current list by subject matter of all
records in the possession of the agency, whether or not available under
this article. Each agency shall update its subject matter list annually,
and the date of the most recent update shall be conspicuously indicated
on the list. Each state agency as defined in subdivision four of this
section that maintains a website shall post its current list on its
website and such posting shall be linked to the website of the committee
on open government. Any such agency that does not maintain a website
shall arrange to have its list posted on the website of the committee on
open government.

4. (a) Each state agency which maintains records containing trade
secrets, to which access may be denied pursuant to paragraph (d) of
subdivision two of this section, shall promulgate regulations in
conformity with the provisions of subdivision five of section
eighty-nine of this article pertaining to such records, including, but
not limited to the following:

(1) the manner of identifying the records or parts;

(2) the manner of identifying persons within the agency to whose
custody the records or parts will be charged and for whose inspection
and study the records will be made available;

(3) the manner of safeguarding against any unauthorized access to the
records.

(b) 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.

(c) Each state agency that maintains a website shall post information
related to this article and article six-A of this chapter on its
website. Such information shall include, at a minimum, contact
information for the persons from whom records of the agency may be
obtained, the times and places such records are available for inspection
and copying, and information on how to request records in person, by
mail, and, if the agency accepts requests for records electronically, by
e-mail. This posting shall be linked to the website of the committee on
open government.

4-a. A law enforcement agency responding to a request for law
enforcement disciplinary records as defined in section eighty-six of
this article shall redact any portion of such record containing the
information specified in subdivision two-b of section eighty-nine of
this article prior to disclosing such record under this article.

4-b. A law enforcement agency responding to a request for law
enforcement disciplinary records, as defined in section eighty-six of
this article, may redact any portion of such record containing the
information specified in subdivision two-c of section eighty-nine of
this article prior to disclosing such record under this article.

5. (a) An agency shall provide records on the medium requested by a
person, if the agency can reasonably make such copy or have such copy
made by engaging an outside professional service. Records provided in a
computer format shall not be encrypted.

(b) No agency shall enter into or renew a contract for the creation or
maintenance of records if such contract impairs the right of the public
to inspect or copy the agency's records.