BILL NUMBER: S5752

SPONSOR: TEDISCO
 
TITLE OF BILL:

An act to amend the public officers law, in relation to the failure to
produce records in response to a FOIL request; and to amend the penal
law, in relation to criminalizing the failure to comply with the freedom
of information law

 
PURPOSE:

This Legislation relates to the failure to produce records in response
to a FOIL request; and creates a misdemeanor for the failure to comply
with the freedom of information law.

 
SUMMARY OF PROVISIONS:

Section 1. Section 86 of the public officers law is amended by adding
two new subdivisions 10 and 11 to read as follows:

              

10. "State agency" means any state department, division, commission,
Public authority or public corporation.

11. "Head of agency" means the commissioner, acting commissioner, Deputy
commissioner, superintendent, director, deputy director, or chief execu-
tive officer of a state agency.

§ 2. Paragraph (a) of subdivision 3 of section 89 of the public officers
law, as amended by chapter 223 of the laws of 2008, is amended to read
as follows:

(a) (1) Each entity subject to the provisions of this article, within
five business days of the receipt of a written request for a record
reasonably described, shall:

(i) make such record available to the person requesting it 
,;

(ii) deny such request in writing; or

(iii) furnish a written acknowledgement of the receipt of such request
and a statement of the approximate date, which shall be reasonable under
the circumstances of the request, when such request will be granted or
denied, including, where appropriate, a statement that access to the
record will be determined in accordance with subdivision five of this
section.

(2) Any entity which furnishes such a written acknowledgement and state-
ment shall have up to thirty days from the date of the request to grant
or deny such request, and where such request is granted, such entity
shall have up to a maximum of ninety days from the date of the request
to make such record available to the person requesting it. When a state
agency grants a request for records from a person and the records are
not made available within thirty days of such request, the head of such
agency shall have a duty to review such request and direct such agency,
in writing, to make the records available to the person who made the
request no later than ninety days from the date of such request, and to
ensure such records are made available. When a state agency receives a
request for records and provides a statement of the approximate date
when such request will be granted or denied, the head of such agency
shall have a duty to direct such agency, in writing, to make such deter-
mination no later than thirty days from the date of such request, and to
ensure such determination is made by such agency within such time. When
a state agency has not denied a request for records or made records
available within thirty days of a request for records, the head of such
agency shall sign a certification, under penalty of perjury, which shall
be signed and posted on the agency's website within forty-five days of
the date of the request, and which shall include:

(i) Whether the head of such agency reviewed the request for records;

(ii) Whether the head of such agency directed the agency, in writing, to
make a determination to grant or deny such request within thirty days
from the date of such request;

(iii) Whether the request was granted or denied by the agency, or wheth-
er the agency failed to make a determination to grant or deny such
request; and

(iv) Whether the head of such agency directed, in writing, that the
records be made available to the person who requested them no later than
ninety days after the date of such request. When a state agency receives
a request for records, and a determination whether to grant or deny such
request has not been made within thirty days of such request, the head
of such agency shall have a duty to notify the governor that the agency
has failed to make such determination, as required by this article, and
to provide a copy of such request. Upon receipt of such notice, the
governor, and any senior staff member of the governor, shall have an
affirmative duty to review such request and to direct such state agency,
in writing, to make a determination within forty-five days of the
request and to direct such state agency, in writing, to make the
requested records available within ninety days of the request, if such
agency grants such request. If such state agency fails to make a deter-
mination to grant or deny a request within forty-five days of the
request, or fails to make the requested records available within ninety
days of the request, the governor, and any senior appointed staff member
of the governor, shall each sign a separate certification, under penalty
of_perjury, which shall be signed_and posted_on_the governor's website
within sixty days after the record request and shall state whether the
governor, or any senior appointed staff member, directed such state
agency, in writing, to make a determination within forty-five days of
the request and whether the governor, or any senior appointed staff
member, directed such state agency to make the requested records avail-
able within ninety days of the request, if such agency granted such
request.

(3) An agency shall not deny a request on the basis that the request is
voluminous or that locating or reviewing the requested records or
providing the requested copies is burdensome because the agency lacks
sufficient staffing or on any other basis if the agency may engage an
outside professional service to provide copying, programming or other
services required to provide the copy, the costs of which the agency may
recover pursuant to paragraph (c) of subdivision one of section eighty-
seven of this article. An agency may require a person requesting lists
of names and addresses to provide a written certification that such
person will not use such lists of names and addresses for solicitation
or fund-raising purposes and will not sell, give or otherwise make
available such lists of names and addresses to any other person for the
purpose of allowing that person to use such lists of names and addresses
for solicitation or fund-raising purposes. If an agency determines to
grant a request in whole or in part, and if circumstances prevent
disclosure to the person requesting the record or records within twenty
business days from the date of the acknowledgement of the receipt of the
request, the agency shall state, in writing, both the reason for the
inability to grant the request within twenty business days and a date
certain within a reasonable period, depending on the circumstances, when
the request will be granted in whole or in part.  Upon payment of, or
offer to pay, the fee prescribed therefor, the entity shall provide a
copy of such record and certify to the correctness of such copy if so
requested, or as the case may be, shall certify that it does not have
possession of such record or that such record cannot be found after
diligent search. Nothing in this article shall be construed to require
any entity to prepare any record not possessed or maintained by such
entity except the records specified in subdivision three of section
eighty-seven and subdivision three of section eighty-eight of this arti-
cle. When an agency has the ability to retrieve or extract a record or
data maintained in a computer storage system with reasonable effort, it
shall be required to do so. When doing so requires less employee time
than engaging in manual retrieval or redactions from non-electronic
records, the agency shall be required to retrieve or extract such record
or data electronically. Any programming necessary to retrieve a record
maintained in a computer storage system and to transfer that record to
the medium requested by a person or to allow the transferred record to
be read or printed shall not be deemed to be the preparation or creation
of a new record.

§ 3. Title P of the penal law is amended by adding a new article 285 to
read as follows:

       ARTICLE 285 OFFENSES AGAINST TRANSPARENCY IN GOVERNMENT

Section 285.05 Criminal failure to comply with the freedom of informa-
tion law. § 285.05 Criminal failure to comply with the freedom of infor-
mation law.

A person is guilty of criminal failure to comply with the freedom of
Information law when:

1. such person is the governor, any senior appointed staff member of the
governor, or the head of a state agency;

2. pursuant to section eighty-nine of the public officers law, such
person has:

a. a duty to review a request for records;

b. a duty to direct a state agency to make a determination, in writing;

c. a duty to direct a state agency, in writing, to make records avail-
able in response to a request for records, or

d. a duty to provide a signed certification; and

3. such person, with intent, fails to review a request for records,
fails to direct a state agency to make a determination in writing, fails
to direct a state agency to make records available in writing, or fails
to provide a signed certification. Notwithstanding any law to contrary,
the state or any state agency shall not indemnify or save harmless or
pay any penalty or legal fees of any person who is guilty of criminal
failure to comply with the freedom of information law. All those found
guilty of criminal failure to comply with the freedom of information law
shall not use public funds, or monies from political action committees
or campaign committees for the payment of fines or legal fees.

Criminal failure to comply with the freedom of information law is a
class B misdemeanor.

 
JUSTIFICATION:

This bill will hold the Governor, Commissioners and senior-level
appointed decision makers personally liable and subject to a Misdemeanor
for violating the open government law and failing to honor valid FOIL
requests in a timely manner.

This legislation would also eliminate indemnification for the Governor
and senior state officials for violating the open government law,
prohibiting the use of public money, or campaign finance dollars to pay
court-ordered fines, or legal fees.

The most recent example of the need for this initiative was the months-
on-end delay to provide the public accurate data regarding COVID-19
nursing home fatalities. In a recent decision, Acting Supreme Court
Justice Kimberly O'Connor ordered the Cuomo administration to pay legal
fees for The Empire Center, who filed a lawsuit demanding the release of
the records last fall. This ultimately put taxpaying New Yorkers on the
hook to pay for the Governor's misdeeds, rubbing salt in the wounds of
all New Yorkers, especially those who lost loved ones.

She added that its continued failure to provide the petitioner a
response, given the straightforward nature of the request, how the data
is collected and maintained, and the fact that some of the requested
data has already been made publicly available without personally identi-
fying information, went against FOIL's broad standard of open and trans-
parent government and was a violation of statute.

This measure will make such a violation a Class B Misdemeanor ($500 fine
or up to 90 days in jail).

 
LEGISLATIVE HISTORY:

New Bill.

 
FISCAL IMPLICATIONS:

Savings to the state by mandating legal fees and fines not be paid with
public funds.

 
EFFECTIVE DATE: :
This act shall take effect on the ninetieth day after it shall have
become a law.