S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 7023--A

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             March 18, 2009
                               ___________

Introduced  by  M. of A. PAULIN, GALEF, JOHN, DESTITO -- Multi-Sponsored
  by -- M. of A.  BOYLAND, HOOPER, LUPARDO, SWEENEY, WALKER,  WEISENBERG
  --  read once and referred to the Committee on Governmental Operations
  -- committee discharged, bill amended, ordered  reprinted  as  amended
  and recommitted to said committee

AN  ACT  to  amend the public officers law, in relation to exceptions to
  the freedom of information law

  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
339 of the laws of 2004, 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  informa-
tion]  RECORDS  to  any  state  agency  may,  at the time of submission,
request that the agency except [such] information IN SUCH  RECORDS  from
disclosure under paragraph (d) of 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.
  (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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09787-02-9

A. 7023--A                          2
              

  (2)  The  request  for  an exception shall be in writing and state the
reasons why [the information] AND IDENTIFY WHICH PORTIONS OF THE RECORDS
should be excepted from disclosure.
  (3)  [Information submitted as provided in subparagraphs one and one-a
of this paragraph shall be excepted from disclosure  and  be  maintained
apart  by the agency from all other records until 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  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.
  (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.] AN AGENCY SHALL
ACKNOWLEDGE RECEIPT OF A REQUEST FOR AN  EXCEPTION  FROM  DISCLOSURE  BY
INFORMING  THE PERSON WHO SUBMITTED SUCH REQUEST THAT THE EXCEPTION FROM
DISCLOSURE, IF APPROVED, SHALL REMAIN IN EFFECT FOR A PERIOD  OF  UP  TO
FIVE  YEARS FROM THE DATE OF SUCH ACKNOWLEDGEMENT.  AN AGENCY SHALL MAKE
A DETERMINATION ON A REQUEST FOR EXCEPTION FROM DISCLOSURE WITHIN TWENTY
DAYS OF THE ACKNOWLEDGED RECEIPT OF A REQUEST AND INFORM THE PERSON  WHO
REQUESTED  THE  EXCEPTIONS OF THE AGENCY'S DETERMINATION OF WHETHER SUCH
EXCEPTION HAS BEEN GRANTED OR CONTINUED.
  (4) THE PERSON TO WHOM AN EXCEPTION FROM DISCLOSURE IS GRANTED MAY  AT
ANY  TIME WITHIN ONE MONTH PRIOR TO THE DATE OF EXPIRATION OF THE EXCEP-
TION REQUEST IN WRITING THAT THE AGENCY EXTEND THE EXCEPTION FOR A PERI-
OD OF ONE YEAR BY EXPLAINING WHY  DISCLOSURE  WOULD  CONTINUE  TO  CAUSE
SUBSTANTIAL  INJURY TO THE COMPETITIVE POSITION OF THE COMMERCIAL ENTER-
PRISE OR OTHERWISE DENIABLE UNDER SUBDIVISION TWO OF THIS SECTION.  SUCH
EXTENSIONS SHALL BE RENEWABLE ON A YEARLY BASIS BASED ON  THE  CONTINUED
DEMONSTRATION  BY THE COMMERCIAL ENTERPRISE OF THE SUBSTANTIAL INJURY OF
ALLOWING DISCLOSURE.  A FAILURE TO REQUEST AN EXCEPTION FROM  DISCLOSURE
OR  TO SEEK AN EXTENSION OF SUCH DISCLOSURE SHALL TERMINATE THE APPLICA-
TION OF THE PROVISIONS OF THIS SUBDIVISION BUT SHALL IN NO WAY LIMIT  OR
ABRIDGE  THE  AUTHORITY  OF  AN AGENCY TO WITHHOLD RECORDS TO THE EXTENT
AUTHORIZED BY SUBDIVISION TWO OF SECTION EIGHTY-SEVEN OF THIS ARTICLE.
  (B) UPON REQUEST OF ANY PERSON FOR A RECORD EXCEPTED FROM  DISCLOSURE,
THE  AGENCY SHALL INFORM THE PERSON MAKING SUCH REQUEST OF THE EXCEPTION

A. 7023--A                          3

FROM DISCLOSURE AND ITS DATE OF EXPIRATION AND OF THE  RIGHT  TO  APPEAL
THE  DENIAL  OF THE REQUEST IN ACCORDANCE WITH PARAGRAPH (A) OF SUBDIVI-
SION FOUR OF THIS SECTION.
  (C)  (1)  A  DENIAL OF A REQUEST FOR AN EXCEPTION FROM DISCLOSURE OR A
REQUEST FOR AN EXTENSION OF  AN  EXCEPTION  PREVIOUSLY  GRANTED  MAY  BE
APPEALED BY THE PERSON REQUESTING SUCH EXCEPTION OR ITS EXTENSION.
  (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 OR EXTENSION and the committee on [public access
to records] OPEN GOVERNMENT.  The notice shall contain  a  statement  of
the reasons for the determination.
  (d)  A proceeding to review an adverse determination pursuant to para-
graph (c) of this subdivision  may  be  commenced  pursuant  to  article
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.
  (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
(B) OF THIS SUBDIVISION IN CONJUNCTION WITH paragraph (d) of 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
exception.
  (g)  AN  AGENCY  SHALL  NOT DISCLOSE A RECORD IN RESPONSE TO A REQUEST
MADE PURSUANT TO THIS ARTICLE DURING THE PENDENCY OF A  REQUEST  FOR  AN
EXCEPTION  FROM DISCLOSURE, ANY APPEAL MADE PURSUANT TO PARAGRAPH (C) OF
THIS SUBDIVISION, OR IF SUCH APPEAL IS DENIED, UNTIL  AT  LEAST  FIFTEEN
DAYS FOLLOWING THE DENIAL OF THE APPEAL.
  (H)  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)]  (I)  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.
  S 2. This act shall take effect immediately.