S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4039
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 31, 2019
                                ___________
 
 Introduced by M. of A. ENGLEBRIGHT, BRONSON -- 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 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 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.
              

                                                            LBD04117-01-9

 A. 4039                             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 NINETEEN 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. 4039                             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.