NY State Senate Bill 2015-S2921A

Senate Bill S2921A

2015-2016 Legislative Session

Requires entities that submit records to state agencies that are excepted from disclosure under FOIL to periodically re-apply for the exception

download bill text pdf

Archive: Last Bill Status - In Senate Committee Investigations And Government Operations Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 15, 2016	print number 2921a
Jan 15, 2016	amend and recommit to investigations and government operations
Jan 06, 2016	referred to investigations and government operations
Jan 30, 2015	referred to investigations and government operations

Bill Amendments

Original

A (Active)

2015-S2921 - Details

See Assembly Version of this Bill:: A6637
Current Committee:: Senate Investigations And Government Operations
Law Section:: Public Officers Law
Laws Affected:: Amd §89, Pub Off L
Versions Introduced in Other Legislative Sessions:: 2013-2014: A6110
2017-2018: S79, A3433
2019-2020: S27, A4039
2021-2022: S1506, A6895
2023-2024: S3257, A9975

2015-S2921 - Summary

Requires entities that submit records to state agencies that are excepted from disclosure under FOIL to periodically re-apply for the exception.

2015-S2921 - Sponsor Memo

                                BILL NUMBER:S2921

TITLE OF BILL:

An act to amend the public officers law, in relation to requiring
entities that submit records to state agencies that are excepted from
disclosure under the freedom of information law to periodically
re-apply for the exception

PURPOSE OR GENERAL IDEA OF THE BILL:

The purpose of this bill is to provide for greater disclosure under
the Freedom of Information Law.

SUMMARY OF SPECIFIC PROVISIONS:

This bill would require that, subsequent to the effective date, when
an entity submits a request to a state agency to have trade secrets
excluded from release under the Freedom of Information Law, the
request must specifically identify which portions of the record are to
be excluded. The requester would also be able to set an expiration
date for the exclusions, provided that such a date is not greater than
3 years. If the state agency agrees to the exclusions and the
submitter did not set an expiration date, after 3 years the submitter
must apply to the agency for a 3 year extension, upon which the agency
must make a determination as to if the exclusions should be extended.

If the submitter does not apply for the extension, the exclusion will
be considered to have expired.  The bill also makes some technical
changes to the Public Meetings Law.

JUSTIFICATION:

Under current law, when an entity submits records to a state agency,
that entity may identify portions of those records that should be
excluded from release under the Freedom of Information Law (FOIL) as
trade secrets. If approved, the exclusion remains in force until a
FOIL request is made for those records. The agency must then contact
the entity to determine if the records must continue to be withheld or
if they can be released. If no FOIL request is made, the exclusion
remains in force indefinitely.

This bill would streamline this process by requiring entities to
reapply for the exclusion every 3 years. If an entity does not
re-apply, the exclusion is considered to be expired and the document
can be released when a FOIL request is made.

PRIOR LEGISLATIVE HISTORY:

A.6110 of 2013-2014 (Englebright): Died in Governmental Operations

FISCAL IMPLICATIONS:

To be determined.

EFFECTIVE DATE:

The act shall take effect immediately.

2015-S2921 - Bill Text download pdf

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

                                  2921

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            January 30, 2015
                               ___________

Introduced  by  Sen. HOYLMAN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Investigations and Govern-
  ment 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08479-01-5

S. 2921                             2

THE REQUEST FOR EXCEPTION and state  the  reasons  why  the  information
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 FIFTEEN 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

S. 2921                             3

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
[(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.

2015-S2921A (ACTIVE) - Details

See Assembly Version of this Bill:: A6637
Current Committee:: Senate Investigations And Government Operations
Law Section:: Public Officers Law
Laws Affected:: Amd §89, Pub Off L
Versions Introduced in Other Legislative Sessions:: 2013-2014: A6110
2017-2018: S79, A3433
2019-2020: S27, A4039
2021-2022: S1506, A6895
2023-2024: S3257, A9975

2015-S2921A (ACTIVE) - Summary

Requires entities that submit records to state agencies that are excepted from disclosure under FOIL to periodically re-apply for the exception.

2015-S2921A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S2921A

 TITLE OF BILL :  An act to amend the public officers law, in relation
to requiring entities that submit records to state agencies that are
excepted from disclosure under the freedom of information law to
periodically re-apply for the exception

 PURPOSE OR GENERAL IDEA OF THE BILL :

The purpose of this bill is to provide for greater disclosure under
the Freedom of Information Law.

 SUMMARY OF SPECIFIC PROVISIONS :

This bill would require that, subsequent to the effective date, when
an entity submits a request to a state agency to have trade secrets
excluded from release under the Freedom of Information Law, the
request must specifically identify which portions of the record are to
be excluded. The requester would also be able to set an expiration
date for the exclusions, provided that such a date is not greater than
3 years. If the state agency agrees to the exclusions and the
submitter did not set an expiration date, after 3 years the submitter
must apply to the agency for a 3 year extension, upon which the agency
must make a determination as to if the exclusions should be extended.
If the submitter does not apply for the extension, the exclusion will
be considered to have expired.  The bill also makes some technical

changes to the Public Meetings Law.

 JUSTIFICATION :

Under current law, when an entity submits records to a state agency,
that entity may identify portions of those records that should be
excluded from release under the Freedom of Information Law (FOIL) as
trade secrets. If approved, the exclusion remains in force until a
FOIL request is made for those records.  The agency must then contact
the entity to determine if the records must continue to be withheld or
if they can be released. If no FOIL request is made, the exclusion
remains in force indefinitely.

This bill would streamline this process by requiring entities to
reapply for the exclusion every 3 years. If an entity does not
re-apply, the exclusion is considered to be expired and the document
can be released when a FOIL request is made.

 PRIOR LEGISLATIVE HISTORY :

A.6110 of 2013-2014 (Englebright): Died in Governmental Operations

 FISCAL IMPLICATIONS :

To be determined.

 EFFECTIVE DATE :
The act shall take effect immediately.

2015-S2921A (ACTIVE) - Bill Text download pdf

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

                                 2921--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            January 30, 2015
                               ___________

Introduced  by  Sen. HOYLMAN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Investigations and Govern-
  ment Operations -- recommitted to the Committee on Investigations  and
  Government  Operations  in  accordance  with  Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08479-02-6

S. 2921--A                          2

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
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 SIXTEEN THAT AMENDED  THIS  SUBDIVI-
SION  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
maintained  apart by the agency from all other records until THE EXPIRA-
TION OF THE SUBMITTER'S EXCEPTION REQUEST  OR  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] 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]

S. 2921--A                          3

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
[(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.

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