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

                                  5170

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 20, 2013
                               ___________

Introduced  by  M.  of  A.  ENGLEBRIGHT,  SILVER,  GLICK, GALEF, MARKEY,
  LAVINE, PEOPLES-STOKES, SCHIMEL --  read  once  and  referred  to  the
  Committee on Governmental Operations

AN  ACT  to  amend  the  public officers law, in relation to requiring a
  particularized and specific justification  for  denial  of  access  to
  records  under  the  freedom  of  information  law  and exemption from
  disclosure under  the  freedom  of  information  law  of  certain  law
  enforcement  related  records;  and  to amend the civil rights law, in
  relation to records identifying victims

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Section 87 of the public officers law is amended by adding
a new subdivision 6 to read as follows:
  6. WHEN A REQUEST IS MADE FOR AGENCY RECORDS AND THE AGENCY  RECEIVING
SUCH REQUEST IS CONSIDERING DENYING ACCESS PURSUANT TO SUBPARAGRAPH I OF
PARAGRAPH  (E)  OF  SUBDIVISION  TWO OF THIS SECTION ON THE GROUNDS THAT
DISCLOSURE WOULD  INTERFERE  WITH  A  JUDICIAL  PROCEEDING,  THE  AGENCY
RECEIVING  SUCH  REQUEST  SHALL  PROMPTLY  NOTIFY, IN WRITING, THE JUDGE
BEFORE WHOM SUCH JUDICIAL PROCEEDING IS PENDING AND  THE  PERSON  MAKING
THE REQUEST. SUCH JUDGE SHALL NOTIFY THE PERSON REQUESTING THE RECORD OF
ITS  RECEIPT,  AND  OFFER  THE PERSON REQUESTING THE RECORD A REASONABLE
OPPORTUNITY TO BE HEARD. AFTER DUE DELIBERATION, SUCH JUDGE SHALL DETER-
MINE WHETHER ACCESS TO SUCH RECORDS SHOULD BE DENIED PURSUANT TO SUBPAR-
AGRAPH I OF PARAGRAPH (E) OF SUBDIVISION TWO OF THIS SECTION  AND  SHALL
SUBMIT  SUCH  DETERMINATION  IN  WRITING  TO  THE  AGENCY AND THE PERSON
REQUESTING THE RECORD.  THE AGENCY SHALL THEN PROCEED AS REQUIRED PURSU-
ANT TO THIS ARTICLE, IN ACCORDANCE WITH THE COURT'S DETERMINATION.
  S 2. Subdivision 6 of section 89 of the public officers law, as  added
by  chapter  933 of the laws of 1977 and as renumbered by chapter 890 of
the laws of 1981, is amended to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09169-01-3

              

A. 5170                             2

  6. Nothing in this article shall be construed to limit or abridge  any
otherwise  available right of access at law or in equity of any party to
records. A DENIAL OF ACCESS TO RECORDS OR TO PORTIONS  THEREOF  PURSUANT
TO  THIS  ARTICLE SHALL NOT LIMIT OR ABRIDGE ANY PARTY'S RIGHT OF ACCESS
TO SUCH RECORDS PURSUANT TO THE CIVIL PRACTICE LAW AND RULES, THE CRIMI-
NAL PROCEDURE LAW, OR ANY OTHER LAW.
  S  3. Section 89 of the public officers law is amended by adding a new
subdivision 10 to read as follows:
  10. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO LIMIT  A  PERSON  OR
ENTITY  THAT  IS  A  PARTY TO ANY CIVIL OR CRIMINAL ACTION OR PROCEEDING
FROM GAINING ACCESS TO RECORDS PURSUANT TO THIS ARTICLE RELATING TO SUCH
ACTION OR PROCEEDING, PROVIDED, HOWEVER, THAT NOTHING IN  THIS  SUBDIVI-
SION  SHALL  PREVENT  THE  DENIAL  OF ACCESS TO SUCH RECORDS OR PORTIONS
THEREOF AFTER PROVIDING PARTICULARIZED AND SPECIFIC  JUSTIFICATION  THAT
SUCH RECORDS MAY BE WITHHELD PURSUANT TO THIS ARTICLE.
  S  4.  The  opening  paragraph  of  subdivision 2 of section 87 of the
public officers law, as added by chapter 933 of the  laws  of  1977,  is
amended to read as follows:
  EACH AGENCY SHALL, IN ACCORDANCE WITH ITS PUBLISHED RULES, MAKE AVAIL-
ABLE FOR PUBLIC INSPECTION AND COPYING ALL RECORDS, EXCEPT THOSE RECORDS
OR  PORTIONS  THEREOF THAT MAY BE WITHHELD PURSUANT TO THE EXCEPTIONS OF
RIGHTS OF ACCESS APPEARING IN THIS SUBDIVISION. A DENIAL OF ACCESS SHALL
NOT BE BASED SOLELY ON THE CATEGORY OR TYPE OF SUCH RECORD AND SHALL  BE
VALID ONLY WHEN THERE IS A PARTICULARIZED AND SPECIFIC JUSTIFICATION FOR
SUCH  DENIAL. 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:
  S  5. Paragraph (e) of subdivision 2 of section 87 of the public offi-
cers law, as added by chapter 933 of the laws of  1977,  is  amended  to
read as follows:
  (e)  are  [compiled]  PREPARED OR CREATED for law enforcement purposes
[and which, if disclosed, would] ONLY  TO  THE  EXTENT  THAT  DISCLOSURE
WOULD:
  i.   interfere   with   law  enforcement  investigations  or  judicial
proceedings, PROVIDED  HOWEVER,  THAT  ANY  AGENCY  CONSIDERING  DENYING
ACCESS  PURSUANT  TO  THIS SUBPARAGRAPH SHALL PROCEED IN ACCORDANCE WITH
SUBDIVISION SIX OF THIS SECTION;
  ii. deprive a person of a right to a fair trial or  impartial  adjudi-
cation;
  iii.  identify a confidential source or disclose confidential informa-
tion relating to a criminal investigation; or
  iv. reveal criminal investigative  techniques  or  procedures,  except
routine techniques and procedures;
  S 6. Subdivision 1 of section 50-b of the civil rights law, as amended
by chapter 320 of the laws of 2006, is amended to read as follows:
  1.  The identity of any victim of a sex offense, as defined in article
one hundred thirty or section 255.25, 255.26 or 255.27 of the penal law,
or of an offense involving the alleged transmission of the human immuno-
deficiency virus, shall be  confidential.  No  PORTION  OF  ANY  report,
paper, picture, photograph, court file or other documents, in the custo-
dy  or  possession  of  any public officer or employee, which identifies
such a victim shall be made available for  public  inspection.  No  such
public  officer  or  employee  shall  disclose any portion of any police
report, court file, or other document, which tends to  identify  such  a
victim except as provided in subdivision two of this section.
  S 7. This act shall take effect immediately.