NY State Senate Bill 2019-S27

Senate Bill S27

2019-2020 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 08, 2020	referred to investigations and government operations
Jan 09, 2019	referred to investigations and government operations

2019-S27 (ACTIVE) - Details

See Assembly Version of this Bill:: A4039
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
2015-2016: S2921, A6637
2017-2018: S79, A3433
2021-2022: S1506, A6895
2023-2024: S3257, A9975

2019-S27 (ACTIVE) - Summary

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

2019-S27 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S27

SPONSOR: HOYLMAN
 
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 period-
ically 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 deter-
mination 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 with- held 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:

S.79 of 2017-2018 (Hoylman): Died in Investigations and Government Oper-
ations
A.3433 of 2017-2018 (Englebright): Died in Governmental Operations
S.2921-A of 2015-2016 (Hoylman): Died in Investigations & Government
Operations
A.6637-A of 2015-2016 (Englebright): Died in Governmental Operations
A.6110 of 2013-2014 (Englebright): Died in Governmental Operations

 
FISCAL IMPLICATIONS:

To be determined.

 
EFFECTIVE DATE:
The act shall take effect immediately.

2019-S27 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    27
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 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 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.

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

                                                            LBD04117-01-9

 S. 27                               2
 
   (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 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.

 S. 27                               3
 
   (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.
   § 2. This act shall take effect immediately.

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