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

                                  6110

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                             March 15, 2013
                               ___________

Introduced  by  M.  of  A. ENGLEBRIGHT, BRONSON, TITONE -- read once and
  referred to the Committee on Governmental 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, 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 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
THE REQUEST FOR EXCEPTION and state  the  reasons  why  the  information

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09164-01-3
              

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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 THIRTEEN AMENDING  THIS  SUBDIVISION
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  main-
tained  apart  by the agency from all other records until THE EXPIRATION
OF THE SUBMITTER'S EXCEPTION REQUEST OR fifteen days after the  entitle-
ment  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)  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

A. 6110                             3

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
[(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.
  S 2. This act shall take effect immediately.