S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3433
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 27, 2017
                                ___________
 
 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.
              

                                                            LBD03845-01-7

 A. 3433                             2
 
 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 SEVENTEEN 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]
 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. 3433                             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.
   § 2. This act shall take effect immediately.