S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8926
 
                             I N  S E N A T E
 
                              April 29, 2022
                                ___________
 
 Introduced  by  Sen. SKOUFIS -- 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  making  certain
   public records available on the internet
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. Section 84 of the public officers law, as added by  chapter
 933 of the laws of 1977, is amended to read as follows:
   § 84. Legislative  declaration.  The  legislature  hereby finds that a
 free society is maintained when government is responsive and responsible
 to the public, and when the public is aware of governmental actions. The
 more open a government is with its citizenry,  the  greater  the  under-
 standing  and  participation  of the public in government. PEOPLE HAVE A
 RIGHT TO KNOW HOW GOVERNMENT OPERATES AND SPENDS MONEY.
   As state and local government services increase  and  public  problems
 become more sophisticated and complex and therefore harder to solve, and
 with  the  resultant increase in revenues and expenditures, it is incum-
 bent upon the state and its localities to extend  public  accountability
 wherever and whenever feasible.
   The people's right to know the process of governmental decision-making
 and  to review the documents and statistics leading to determinations is
 basic to our society. Access to such information should not be  thwarted
 by shrouding it with the cloak of secrecy or confidentiality.
   SINCE  THE  FREEDOM  OF INFORMATION LAW WAS FIRST ADOPTED, ADVANCES IN
 TECHNOLOGY HAVE ENHANCED THE  ABILITY  TO  GAIN  ACCESS  TO  AND  WIDELY
 DISSEMINATE  PUBLIC INFORMATION. ACCORDINGLY, THE LEGISLATURE FINDS THAT
 GOVERNMENT AGENCIES, WHEN AGENCIES HAVE THE ABILITY  TO  DO  SO,  SHOULD
 PUBLISH  PUBLIC  RECORDS  PROACTIVELY ON THE INTERNET THAT ARE OF PUBLIC
 INTEREST AND AVAILABLE UNDER THIS ARTICLE.
   The legislature therefore declares that  government  is  the  public's
 business  and that the public, individually and collectively and repres-
 ented by a free press, should have access to the records  of  government
 in accordance with the provisions of this article.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD15399-02-2
 S. 8926                             2
 
   § 2. Subdivisions 3 and 4 of section 86 of the public officers law, as
 added by chapter 933 of the laws of 1977, are amended and two new subdi-
 visions 10 and 11 are added to read as follows:
   3.  "Agency"  EXCLUDES  THE JUDICIARY AND STATE LEGISLATURE, AND means
 any state or municipal department, SCHOOL DISTRICT, board, bureau, divi-
 sion, commission, committee, public authority, public corporation, coun-
 cil, office or other governmental entity performing  a  governmental  or
 proprietary  function  for  the  state or any one or more municipalities
 thereof, [except the judiciary or the state legislature]  OR  ANY  OTHER
 BODY, BY WHATEVER NAME, ACTING ON BEHALF OF GOVERNMENT WHICH, CONSIDERED
 IN  ITS  TOTALITY, IS FUNCTIONALLY EQUIVALENT TO AN AGENCY AS DEFINED IN
 THIS SUBDIVISION BECAUSE IT SUBSTANTIALLY POSSESSES ANY OF THE FOLLOWING
 FEATURES AND FUNCTIONS:
   (A) THE BODY PERFORMS A GOVERNMENTAL OR PROPRIETARY FUNCTION  FOR  THE
 STATE OR MUNICIPALITY;
   (B) THE BODY'S MEMBERS HAVE AUTHORITY TO MAKE DECISIONS OR RECOMMENDA-
 TIONS ON POLICY AND ADMINISTRATION AFFECTING THE CONDUCT OF THE BUSINESS
 OF THE PEOPLE IN THE GOVERNMENTAL SECTOR;
   (C)  THE BODY WAS CREATED BY A GOVERNMENTAL OR GOVERNMENTAL-AFFILIATED
 ENTITY OR THE BODY'S ORIGIN AND AUTHORITY MAY BE TRACED TO  GOVERNMENTAL
 ACTION;
   (D)  THE BODY IS CONTROLLED BY, OVERSEEN OR OPERATIONALLY MANAGED BY A
 GOVERNMENTAL OR GOVERNMENTAL-AFFILIATED ENTITY;
   (E) THE BODY RECEIVES SUBSTANTIAL GOVERNMENT FINANCIAL OR NONFINANCIAL
 SUPPORT;
   (F) THE BODY'S OFFICERS AND EMPLOYEES  ARE  PUBLIC  EMPLOYEES  OR  ARE
 NOMINATED OR APPOINTED BY PUBLIC EMPLOYEES; OR
   (G) THE BODY WAS PREVIOUSLY DETERMINED TO BE OPEN TO PUBLIC ACCESS.
   4.  "Record"  means  any  [information  kept, held, filed, produced or
 reproduced by, with or for an agency or the state  legislature,  in  any
 physical  form whatsoever including, but not limited to, reports, state-
 ments, examinations, memoranda, opinions, folders, files,  books,  manu-
 als, pamphlets, forms, papers, designs, drawings, maps, photos, letters,
 microfilms,  computer tapes or discs, rules, regulations or codes] DOCU-
 MENTS OR ELECTRONICALLY STORED INFORMATION, INCLUDING BUT NOT LIMITED TO
 ANY WRITING, DRAWING, GRAPH, CHART, PHOTOGRAPH, SOUND  RECORDING,  VIDEO
 RECORDING,  IMAGE,  AND  OTHER  DATA  OR DATA COMPILATION, STORED IN ANY
 MEDIUM FROM WHICH INFORMATION CAN BE OBTAINED  EITHER  DIRECTLY  OR,  IF
 NECESSARY,  AFTER  TRANSLATION  BY  THE  AGENCY INTO A REASONABLY USABLE
 FORM.
   10. "PUBLISHABLE STATE DATA" MEANS DATA COLLECTED BY  A  STATE  AGENCY
 THAT  THE AGENCY IS PERMITTED, REQUIRED OR ABLE TO MAKE AVAILABLE TO THE
 PUBLIC, CONSISTENT WITH ANY AND ALL APPLICABLE LAWS, RULES, REGULATIONS,
 ORDINANCES, RESOLUTIONS, POLICIES OR OTHER RESTRICTIONS, REQUIREMENTS OR
 RIGHTS ASSOCIATED WITH THE STATE DATA,  INCLUDING  BUT  NOT  LIMITED  TO
 CONTRACTUAL  OR  OTHER  LEGAL ORDERS, RESTRICTIONS OR REQUIREMENTS. DATA
 SHALL NOT BE PUBLISHABLE STATE DATA IF MAKING SUCH DATA AVAILABLE  ON  A
 WEBSITE  WOULD  VIOLATE STATUTE OR REGULATION, INCLUDING DISCLOSURE THAT
 WOULD CONSTITUTE AN UNWARRANTED INVASION OF PERSONAL  PRIVACY,  ENDANGER
 THE  PUBLIC  HEALTH,  SAFETY OR WELFARE, HINDER THE OPERATION OF GOVERN-
 MENT, INCLUDING CRIMINAL AND CIVIL INVESTIGATIONS, OR  IMPOSE  AN  UNDUE
 FINANCIAL,  OPERATIONAL  OR ADMINISTRATIVE BURDEN ON THE STATE AGENCY OR
 STATE.
   11. "BUSINESS DAYS" AND  "DAYS"  SHALL  BE  CALCULATED  FROM  DATE  OF
 SUBMISSION, IF ELECTRONIC, OR ELSE POST MARK DATE.
 S. 8926                             3
 
   § 3. Paragraphs (a) and (b) of subdivision 1, paragraphs (c), (d), (e)
 and  (g) of subdivision 2, paragraph (c) of subdivision 3 and paragraphs
 (b) and (c) of subdivision 4 of section 87 of the public  officers  law,
 paragraph  (a) and the opening paragraph of paragraph (b) of subdivision
 1  as amended by chapter 80 of the laws of 1983, paragraph (b) of subdi-
 vision 1 and paragraph (c) of subdivision 2 as added by chapter  933  of
 the  laws of 1977, subparagraph iii of paragraph (b) of subdivision 1 as
 amended by chapter 223 of the laws of 2008, paragraph (d) of subdivision
 2 as amended by chapter 289 of the laws of 1990, paragraph (e) of subdi-
 vision 2 as amended by chapter 155 of the laws of 2022, paragraph (g) of
 subdivision 2 as amended by chapter 510 of the laws of  1999,  paragraph
 (c)  of  subdivision  3  as  amended by chapter 499 of the laws of 2008,
 paragraph (b) of subdivision 4 as added by chapter 890 of  the  laws  of
 1981  and  paragraph (c) of subdivision 4 as added by chapter 102 of the
 laws of 2007, are amended and a new subdivision 6 is added  to  read  as
 follows:
   (a)  [Within  sixty days after the effective date of this article, the
 governing body of each public corporation shall promulgate uniform rules
 and regulations for all agencies in such public corporation pursuant  to
 such  general  rules  and  regulations as may be promulgated by the] THE
 committee on open government SHALL PROMULGATE GENERAL  RULES  AND  REGU-
 LATIONS in conformity with the provisions of this article, pertaining to
 the administration of this article.
   (b) Each agency shall [promulgate rules and regulations, in conformity
 with  this  article  and  applicable  rules  and regulations promulgated
 pursuant to] ADOPT the provisions of paragraph (a) of this  subdivision,
 and  pursuant  to  such  general  rules  and regulations as [may be] ARE
 promulgated by the committee on open government in [conformity with  the
 provisions  of  this  article, pertaining to the availability of records
 and procedures to be followed] ACCORDANCE WITH THE PROVISIONS  OF  PARA-
 GRAPH  (A)  OF  THIS SUBDIVISION, SHALL PROMULGATE AGENCY-SPECIFIC RULES
 AND REGULATIONS IN CONFORMITY  WITH  THE  PROVISIONS  OF  THIS  ARTICLE,
 including, but not limited to:
   i. the times and places [such] AGENCY records are available;
   ii. the persons from whom such records may be obtained, and
   iii. the fees for copies of records which shall not exceed twenty-five
 cents  per photocopy not in excess of nine inches by fourteen inches, or
 the actual cost of reproducing any other record in accordance  with  the
 provisions of paragraph (c) of this subdivision, except when a different
 fee is otherwise prescribed by statute.
   (c) if disclosed would impair present or imminent contract awards [or]
 EXCLUDING collective bargaining negotiations;
   (d)  are  trade  secrets or are submitted to an agency by a commercial
 enterprise or derived from information obtained from a commercial enter-
 prise UNDER COMPULSION OF LAW OR REGULATION and which if disclosed would
 cause substantial injury to the  competitive  position  of  the  subject
 enterprise;
   (e)  are  compiled  for SUCH AGENCY'S law enforcement purposes only to
 the extent that disclosure would:
   i. interfere with SUCH  AGENCY'S  law  enforcement  investigations  or
 judicial  proceedings,  provided  however, that any agency, which is not
 conducting the investigation that the requested records relate to,  that
 is  considering  denying  access  pursuant  to  this  subparagraph shall
 receive confirmation from the law enforcement  or  investigating  agency
 conducting the investigation that disclosure of such records will inter-
 fere with an ongoing investigation;
 S. 8926                             4
 
   ii.  deprive  a person of a right to a fair trial or impartial adjudi-
 cation;
   iii.  identify a confidential source or disclose confidential informa-
 tion relating to a criminal investigation; or
   iv. reveal criminal investigative  techniques  or  procedures,  except
 routine techniques and procedures;
   (g) are inter-agency or intra-agency DELIBERATIVE materials, INCLUDING
 RECOMMENDATIONS,  PROPOSALS, SUGGESTIONS, AND OTHER SUBJECTIVE DOCUMENTS
 REFLECTING THE PERSONAL OPINIONS OF THE WRITER OR  WRITERS  RATHER  THAN
 THE POLICY OF THE AGENCY, which are not:
   i. statistical or factual tabulations or data;
   ii. instructions to staff that affect the public;
   iii. final agency policy or determinations;
   iv.  external audits, including but not limited to audits performed by
 the comptroller and the federal government; or
   (c) a reasonably detailed  current  list  by  subject  matter  of  all
 records  in the possession of the agency, whether or not available under
 this article. Each agency shall update its subject matter list annually,
 and the date of the most recent update shall be conspicuously  indicated
 on  the  list.  Each state agency as defined in subdivision four of this
 section [that maintains a website] shall post its current  list  on  its
 website and such posting shall be linked to the website of the committee
 on  open  government.  [Any such agency that does not maintain a website
 shall arrange to have its list posted on the website of the committee on
 open government.]
   (b) 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]  A  BOARD,  BUREAU,  DIVISION, COMMISSION,
 COMMITTEE, PUBLIC AUTHORITY,  PUBLIC  CORPORATION,  COUNCIL,  OFFICE  OR
 OTHER GOVERNMENTAL ENTITY PERFORMING A GOVERNMENTAL OR PROPRIETARY FUNC-
 TION FOR THE STATE, EXCEPT THE JUDICIARY OR THE STATE LEGISLATURE.
   (c)  Each  state  agency  [that  maintains]  SHALL  MAINTAIN a website
 [shall] AND post information related to this article and  article  six-A
 of  this  chapter  on  its website. Such information shall include, at a
 minimum, contact information for the persons from whom  records  of  the
 agency  may be obtained, the times and places such records are available
 for inspection and copying, and information on how to request records in
 person, by mail, and[, if the agency accepts requests for records  elec-
 tronically,]  by  e-mail. This posting shall be linked to the website of
 the committee on open government.
   (D) EVERY STATE AGENCY SHALL MAKE ITS PUBLISHABLE STATE DATA AVAILABLE
 ON THE AGENCY'S WEBSITE OR  TO  THE  OFFICE  OF  INFORMATION  TECHNOLOGY
 SERVICES TO BE AVAILABLE ON THE STATE'S OPEN DATA WEBSITE.
   (E) EVERY AGENCY SHALL MAKE AVAILABLE ON ITS WEBSITE'S HOMEPAGE A LINK
 TO THAT AGENCY'S CURRENT FISCAL YEAR BUDGET.
   (F)  EVERY  AGENCY  SHALL  MAKE  AVAILABLE  COPIES  OF ALL CURRENT AND
 PROPOSED COLLECTIVE BARGAINING AGREEMENTS AND RELATED DOCUMENTS, INCLUD-
 ING, BUT NOT LIMITED TO, ALL ADDENDA, SCHEDULES,  MEMORANDA,  AND  OTHER
 ATTACHMENTS.
   6.  WHENEVER  THERE IS A QUESTION AS TO WHETHER OR NOT A RECORD SHOULD
 BE DISCLOSED, IT SHALL BE PRESUMED THAT THE REQUESTOR IS ENTITLED TO THE
 RECORD.
   § 4. Subdivision 1, paragraphs (a) and (b) of subdivision 2,  subdivi-
 sions  3  and  4 and paragraph (h) of subdivision 5 of section 89 of the
 public officers law, subdivision 1 as added by chapter 933 of  the  laws
 S. 8926                             5
 
 of  1977, paragraph (a) of subdivision 1 as amended by chapter 33 of the
 laws of 1984, paragraph (b) of subdivision 1 as amended by  chapter  182
 of  the  laws  of  2006,  paragraph  (a)  of subdivision 2 as amended by
 section 11 of part U of chapter 61 of the laws of 2011, paragraph (b) of
 subdivision  2  as amended by section 2 of part GGG of chapter 59 of the
 laws of 2019, subdivision 3 as amended by chapter 223  of  the  laws  of
 2008,  paragraph (c) of subdivision 3 as added by chapter 47 of the laws
 of 2018, subdivision 4 as amended by chapter 22 of  the  laws  of  2005,
 paragraph  (c) of subdivision 4 as amended by chapter 453 of the laws of
 2017, paragraph (d) of subdivision 4 as added by chapter 487 of the laws
 of 2016 and paragraph (h) of subdivision 5 as added by  chapter  890  of
 the laws of 1981, are amended to read as follows:
   1.  (a)  (I)  The  committee on open government is continued and shall
 consist of [the lieutenant governor or the delegate of such officer, the
 secretary of state or the delegate of such officer, whose  office  shall
 act  as secretariat for the committee, the commissioner of the office of
 general services or the delegate of such officer, the  director  of  the
 budget or the delegate of such officer, and] seven [other] persons, none
 of  whom  shall  hold  any other state or local public office except the
 representative of local governments as set forth herein, to be appointed
 as follows: [five by the governor, at least two of whom are or have been
 representatives of the news media, one of whom shall be a representative
 of local government who, at the time of appointment,  is  serving  as  a
 duly  elected officer of a local government, one by the temporary presi-
 dent of the senate, and one by the speaker of the assembly. The  persons
 appointed  by  the  temporary president of the senate and the speaker of
 the assembly shall be appointed to serve, respectively, until the  expi-
 ration of the terms of office of the temporary president and the speaker
 to  which  the  temporary  president  and speaker were elected. The four
 persons presently serving by appointment of the governor for fixed terms
 shall continue to serve until the expiration of their respective  terms.
 Thereafter,  their respective successors shall be appointed for terms of
 four years. The member representing local government shall be  appointed
 for  a  term  of  four years, so long as such member shall remain a duly
 elected officer of a local government.]  TWO  REPRESENTATIVES,  EACH  OF
 WHOM  IS  FROM  THE NEWS MEDIA OR A NONGOVERNMENTAL NONPROFIT GROUP THAT
 WORKS ON ISSUES RELATED TO TRANSPARENCY OR OPEN GOVERNMENT, TWO   REPRE-
 SENTATIVES  OF  LOCAL  GOVERNMENT  WHO,  AT THE TIME OF APPOINTMENT, ARE
 SERVING AS DULY ELECTED  OFFICERS  OF  A  LOCAL  GOVERNMENT,  AND  THREE
 PRIVATE  CITIZENS OF THE STATE, NONE OF WHOM MAY BE CUSTODIANS OF PUBLIC
 RECORDS, MEMBERS OF THE NEWS MEDIA OR A NONPROFIT GROUP  THAT  WORKS  ON
 ISSUES  RELATED TO TRANSPARENCY OR OPEN GOVERNMENT, OR A STAFF MEMBER OR
 SPOKESPERSON FOR AN ORGANIZATION THAT REPRESENTS  CUSTODIANS  OR  REQUE-
 STORS  OF  PUBLIC  RECORDS. OF THE SEVEN MEMBERS,  AT LEAST TWO SHALL BE
 ATTORNEYS ADMITTED TO PRACTICE IN  NEW  YORK  AND  AT  LEAST  TWO  SHALL
 POSSESS  EXPERTISE  CONCERNING  ELECTRONIC RECORDS, INCLUDING ELECTRONIC
 STORAGE, RETRIEVAL, REVIEW, AND REPRODUCTION TECHNOLOGIES.
   (II) MEMBERS OF THE COMMITTEE SHALL BE APPOINTED FROM A POOL OF APPLI-
 CANTS IDENTIFIED BY THE GOVERNOR AND THE GOVERNOR SHALL PUBLISH  ON  THE
 GOVERNOR'S  WEBSITE  NOTICE  OF THE GOVERNOR'S INTENT TO CONSIDER APPLI-
 CANTS FOR POSITIONS ON THE COMMITTEE ON OPEN GOVERNMENT AND  THE  NOTICE
 SHALL INCLUDE THE APPLICATION PROCEDURES, CRITERIA FOR EVALUATING APPLI-
 CANTS'  QUALIFICATIONS,  AND  PROCEDURES  FOR RESOLVING ANY CONFLICTS OF
 INTEREST; AND SOLICIT RECOMMENDATIONS FOR COMMITTEE MEMBERS  FROM  AGEN-
 CIES,  NEWS  MEDIA,  AND  NONGOVERNMENTAL  NONPROFIT GROUPS THAT WORK ON
 ISSUES RELATED TO TRANSPARENCY OR OPEN GOVERNMENT; AND  POST  NAMES  AND
 S. 8926                             6
 
 QUALIFICATIONS  OF APPLICANTS ON THE GOVERNOR'S WEBSITE; AND WHEN EVALU-
 ATING AN APPLICANT, CONSIDER THE NEED FOR GEOGRAPHIC, POLITICAL, RACIAL,
 ETHNIC, CULTURAL, AND GENDER DIVERSITY ON THE COMMITTEE AND  ENSURE  THE
 NEUTRALITY OF THE COMMITTEE.
   (III)  SUBJECT  TO  THE ADVICE AND CONSENT OF THE SENATE, THE GOVERNOR
 SHALL APPOINT THE MEMBERS OF THE COMMITTEE FROM THE POOL  OF  APPLICANTS
 CREATED PURSUANT TO THIS SECTION.
   (IV)  The  committee  shall  [hold no less than two meetings annually]
 MEET AT LEAST MONTHLY, but may meet at any time.
   (V) The members of the committee shall be  entitled  to  reimbursement
 for actual expenses incurred in the discharge of their duties.
   (b) The committee shall:
   i.  [furnish  to  any  agency  advisory  guidelines, opinions or other
 appropriate information regarding this article] ISSUE ADVISORY  OPINIONS
 TO ANY AGENCY OR PERSON WHICH SHALL BE MADE AVAILABLE ON THE COMMITTEE'S
 WEBSITE;
   ii.  [furnish  to  any  person  advisory opinions or other appropriate
 information regarding this article] PROVIDE ANNUAL TRAINING TO AGENCIES,
 PUBLIC OFFICIALS AND PUBLIC EMPLOYEES ON ARTICLES SIX AND SEVEN OF  THIS
 CHAPTER;
   iii. promulgate rules and regulations [with respect to the implementa-
 tion  of  subdivision  one  and  paragraph  (c)  of subdivision three of
 section eighty-seven] TO CARRY OUT THE PROVISIONS of this article  WHICH
 SHALL BE MADE AVAILABLE ON THE COMMITTEE'S WEBSITE;
   iv. [request from any agency such assistance, services and information
 as  will  enable  the  committee to effectively carry out its powers and
 duties] ASSIGN APPEALS OFFICERS TO REVIEW APPEALS OF DECISIONS BY  AGEN-
 CIES  AND  ISSUE  ORDERS  AND  OPINIONS.  THE  COMMITTEE SHALL EMPLOY OR
 CONTRACT WITH ATTORNEYS TO SERVE AS APPEALS OFFICERS TO  REVIEW  APPEALS
 AND, IF NECESSARY, TO HOLD HEARINGS ON A REGIONAL BASIS UNDER THIS ARTI-
 CLE.  EACH  APPEALS  OFFICER  MUST COMPLY WITH ALL OF THE FOLLOWING: (A)
 COMPLETE A TRAINING COURSE PROVIDED BY THE COMMITTEE PRIOR TO ACTING  AS
 AN  APPEALS  OFFICER;  (B)  IF  A  HEARING  IS  NECESSARY, HOLD HEARINGS
 REGIONALLY AS NECESSARY TO ENSURE ACCESS TO  THE  REMEDIES  PROVIDED  BY
 THIS  ARTICLE AND ARTICLE SEVEN OF THIS CHAPTER; AND (C) COMPLY WITH THE
 PROCEDURES UNDER THIS ARTICLE AND ARTICLE SEVEN OF THIS CHAPTER AND  ANY
 RULES OR REGULATIONS PROMULGATED BY THE COMMITTEE;
   v.  [develop  a  form,  which shall be made available on the internet,
 that may be used by  the  public  to  request  a  record]  ESTABLISH  AN
 INFORMAL  MEDIATION  PROGRAM  TO RESOLVE DISPUTES UNDER THIS ARTICLE AND
 ARTICLE SEVEN OF THIS CHAPTER; and
   vi. report on its activities [and findings], INCLUDING THE NUMBER  AND
 NATURE  OF  COMPLAINTS  FILED WITH THE COMMITTEE, ITS DECISIONS, AND ANY
 RECOMMENDED CHANGES TO THE LAW regarding this article and article  seven
 of  this chapter, [including recommendations for changes in the law,] to
 the governor and  the  legislature  annually,  on  or  before  [December
 fifteenth] OCTOBER THIRTY-FIRST.
   (C) THE COMMITTEE SHALL APPOINT AN EXECUTIVE DIRECTOR WHO SHALL NOT BE
 AN EXISTING STATE EMPLOYEE AND WHO SHALL SERVE FOR A TERM OF FIVE YEARS,
 UNLESS REMOVED BY A MAJORITY VOTE OF THE COMMITTEE. THE EXECUTIVE DIREC-
 TOR  SHALL  RECEIVE  A  SALARY IN THE SAME AMOUNT AS SET FORTH FOR STATE
 OFFICERS IN SUBDIVISION TWO OF SECTION ONE  HUNDRED  SIXTY-NINE  OF  THE
 EXECUTIVE LAW. THE EXECUTIVE DIRECTOR MAY SERVE NO MORE THAN TWO TERMS.
   (D) THE EXECUTIVE DIRECTOR SHALL NOT SEEK ELECTION NOR ACCEPT APPOINT-
 MENT  TO  ANY  POLITICAL  OFFICE  DURING  HIS OR HER TENURE AS EXECUTIVE
 DIRECTOR AND FOR ONE YEAR THEREAFTER.
 S. 8926                             7
 
   (E) THE EXECUTIVE DIRECTOR SHALL ENSURE THAT THE DUTIES OF THE COMMIT-
 TEE ON OPEN GOVERNMENT ARE CARRIED OUT AND  SHALL  MONITOR  APPEALS  AND
 COMPLAINTS SUBMITTED TO THE COMMITTEE.
   (a)  The  committee  on [public access to records may] OPEN GOVERNMENT
 SHALL promulgate guidelines regarding deletion of identifying details or
 withholding of records otherwise available under this article to prevent
 unwarranted invasions of personal  privacy.  [In  the  absence  of  such
 guidelines,  an  agency  may  delete  identifying  details when it makes
 records available.]
   (b) An unwarranted invasion of personal privacy  includes,  but  shall
 not be limited to:
   i.  disclosure  of employment, medical or credit histories or personal
 references of applicants for employment;
   ii. disclosure of items involving the medical or personal records of a
 client or patient in a medical facility;
   iii. sale or release of lists of names OF NATURAL PERSONS and RESIDEN-
 TIAL addresses if such lists would be used  for  solicitation  or  fund-
 raising purposes;
   iv.  disclosure  of  information  of a personal nature when disclosure
 would result in economic or personal hardship to the subject  party  and
 such information is not relevant to the work of the agency requesting or
 maintaining it;
   v.  disclosure  of information of a personal nature reported in confi-
 dence to an agency and not relevant to the ordinary work of such agency;
   vi. information of a personal nature contained in a  workers'  compen-
 sation  record,  except  as provided by section one hundred ten-a of the
 workers' compensation law;
   vii. disclosure of electronic contact information, such as  an  e-mail
 address  or  a  social  network username, that has been collected from a
 taxpayer under section one hundred four of the real property tax law; or
   viii. disclosure of law enforcement arrest or booking  photographs  of
 an  individual,  unless  public release of such photographs will serve a
 specific law enforcement purpose and disclosure is not precluded by  any
 state or federal laws.
   3.  (a)  Each entity subject to the provisions of this article, within
 [five] TEN business days of the receipt of  a  [written  request  for  a
 record  reasonably described] RECORD OR RECORDS REQUEST, shall make such
 record OR RECORDS available to the  [person  requesting  it,  deny  such
 request  in  writing]  REQUESTOR or 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 OR RECORDS  will  be  determined  in
 accordance  with subdivision five of this section.  SUCH ACKNOWLEDGEMENT
 SHALL INCLUDE:
   I. A STATEMENT OF THE APPROXIMATE  DATE,  WHICH  SHALL  BE  REASONABLE
 UNDER  THE  CIRCUMSTANCES  OF  THE REQUEST NOT TO EXCEED TWENTY BUSINESS
 DAYS FROM RECEIPT OF THE ORIGINAL REQUEST, AND  ADVISING  IF  EXCEPTIONS
 WILL  APPLY,  WHEN  SUCH  REQUEST  WILL BE GRANTED OR DENIED, INCLUDING,
 WHERE APPROPRIATE, A STATEMENT THAT ACCESS TO THE RECORD WILL BE  DETER-
 MINED IN ACCORDANCE WITH SUBDIVISION FIVE OF THIS SECTION; OR
   II.  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 WITH-
 S. 8926                             8
 
 IN  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, AND ADVISE IF EXCEPTIONS WILL APPLY.
   III. IN THE EVENT THAT THE AGENCY DETERMINES IT CANNOT GRANT ACCESS TO
 ANY OF THE REQUESTED RECORD OR RECORDS: (A) A STATEMENT OF DETERMINATION
 THAT ACCESS TO THE REQUESTED RECORD OR RECORDS CANNOT BE GRANTED BECAUSE
 THE  REQUEST  WAS  MADE TO THE WRONG AGENCY; (B) A STATEMENT OF DETERMI-
 NATION THAT ACCESS TO THE REQUESTED RECORD OR RECORDS CANNOT BE  GRANTED
 BECAUSE  THE  REQUEST  IS TOO VAGUE; OR (C) A STATEMENT OF DETERMINATION
 THAT ACCESS TO THE REQUESTED RECORD OR RECORDS CANNOT BE GRANTED BECAUSE
 THE RECORDS DO NOT EXIST.
   (B) WHERE APPROPRIATE, AN AGENCY SHALL MAKE A DETERMINATION UNDER THIS
 SUBDIVISION FOR EACH CATEGORY OF RECORD IN A RECORDS REQUEST  CONTAINING
 MORE THAN ONE RECORDS REQUEST.
   (C)  An  agency shall not deny a request on the basis that the request
 is voluminous or that locating, GENERATING, 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.
   (D)  An  agency  may  require  a  person  requesting lists of names OF
 NATURAL PERSONS and RESIDENTIAL addresses to provide a  written  certif-
 ication  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 circum-
 stances 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.]
   (E) Upon payment of, or offer to pay, the fee prescribed therefor, the
 entity  shall  provide a copy of such record and certify to the correct-
 ness 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 article. 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  trans-
 fer  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.
   [(b)]  (F)  All  entities  shall[, provided such entity has reasonable
 means available,] accept requests for records submitted in the  form  of
 S. 8926                             9
 
 electronic  mail  and shall respond to such requests by electronic mail,
 using forms, to the extent practicable,  consistent  with  the  form  or
 forms developed by the committee on open government pursuant to subdivi-
 sion  one  of this section and provided that the written requests do not
 seek a response in some other form.  AGENCIES SHALL NOT REQUIRE REQUESTS
 TO BE MADE IN ANY SPECIFIC FORMAT AND MAY NOT IGNORE  OR  DENY  REQUESTS
 NOT MADE IN THE AGENCY'S PREFERRED FORMAT.
   [(c)]  (G)  Each  state agency, as defined in subdivision five of this
 section, that maintains a website shall ensure its website provides  for
 the online submission of a request for records pursuant to this article.
   (H)  ALL RESPONSES TO REQUESTS SHALL BE ATTRIBUTED TO A NATURAL PERSON
 WHO IS AN EMPLOYEE OF THE RESPONDING ENTITY. RESPONSES CONTAINING DENIAL
 OF REQUESTS, ASSERTING  EXCEPTIONS  TO  DISCLOSURE,  OR  ASSERTING  THAT
 RECORDS DO NOT EXIST, SHALL BE SWORN UNDER THE PENALTY OF PERJURY.
   4.  (a)  Except  as  provided in subdivision five of this section, any
 person denied access to a record may within [thirty] NINETY days  appeal
 in  writing  such denial to the [head, chief executive or governing body
 of the entity, or the person therefor designated  by  such  head,  chief
 executive,  or governing body, who shall within ten business days of the
 receipt of such appeal fully explain in writing to the person requesting
 the record the reasons for further denial,  or  provide  access  to  the
 record sought. In addition, each agency shall immediately forward to the
 committee  on open government a copy of such appeal when received by the
 agency and the ensuing determination thereon] COMMITTEE ON OPEN  GOVERN-
 MENT.  Failure  by an agency to conform to the provisions of subdivision
 three of this section shall constitute a denial. A WRITTEN APPEAL  SHALL
 INCLUDE,  IF AVAILABLE, A COPY OF THE ORIGINAL REQUEST FOR PUBLIC RECORD
 OR RECORDS, AND THE AGENCY'S RESPONSE, IF ANY.
   I. UPON RECEIPT OF AN APPEAL UNDER THIS SUBDIVISION, THE COMMITTEE  ON
 OPEN GOVERNMENT SHALL ASSIGN AN APPEALS OFFICER TO DETERMINE WHETHER THE
 APPEAL  IS  WITHIN  THE  COMMITTEE'S  JURISDICTION, FRIVOLOUS OR WITHOUT
 FACTUAL BASIS, REDUCE THAT CONCLUSION TO WRITING AND TRANSMIT A COPY  TO
 THE  REQUESTOR AND TO THE RESPONSIBLE RECORDS ACCESS OFFICER AND REQUEST
 A WRITTEN RESPONSE FROM THE AGENCY. UPON RECEIPT OF A REQUEST  FROM  THE
 COMMITTEE  ON OPEN GOVERNMENT AN AGENCY SHALL PROVIDE A WRITTEN RESPONSE
 TO THE APPEAL WITHIN FIFTEEN DAYS AFTER  RECEIVING  THE  REQUEST  FOR  A
 RESPONSE;  AND  IF  THE APPEAL ALLEGES THE AGENCY FAILED TO RESPOND TO A
 REQUEST WITHIN THE STATUTORY TIME, PROVIDE  A  RESPONSE  TO  THE  RECORD
 REQUEST;  AND  IF  THE  APPEAL  ALLEGES  THE  AGENCY DENIED A REQUEST IN
 VIOLATION OF THIS ARTICLE, PROVIDE A COPY OF THE RECORD,  A  DESCRIPTIVE
 INDEX  OF  THE RECORD, OR A WRITTEN REASON WHY THE RECORD IS BEING WITH-
 HELD, AS APPROPRIATE.
   II. THE AGENCY OR REQUESTOR SHALL PROVIDE AN AFFIDAVIT OR STATEMENT OF
 FACTS AT ISSUE IN THE APPEAL WITHIN THE TIME PROVIDED IN A REQUEST  THAT
 THE COMMITTEE ON OPEN GOVERNMENT MAY MAKE.
   III. THE COMMITTEE ON OPEN GOVERNMENT SHALL MAINTAIN THE CONFIDENTIAL-
 ITY OF ANY RECORD PROVIDED UNDER THIS SUBDIVISION.
   IV.  A  PERSON  OR  AGENCY MAY NOT BE CIVILLY OR CRIMINALLY LIABLE FOR
 PROVIDING A RECORD TO THE COMMITTEE ON OPEN GOVERNMENT UNDER THIS SUBDI-
 VISION.
   V. THE PROVISION OF A RECORD OR A  DESCRIPTION  OF  A  RECORD  TO  THE
 COMMITTEE ON OPEN GOVERNMENT UNDER THIS SUBDIVISION MAY NOT BE CONSTRUED
 AS A WAIVER OF ANY APPLICABLE PRIVILEGE.
   VI. UPON RECEIPT OF THE AGENCY RESPONSE AND ANY ADDITIONAL INFORMATION
 REQUESTED UNDER THIS SUBDIVISION, THE COMMITTEE ON OPEN GOVERNMENT SHALL
 INVITE  THE REQUESTOR TO PARTICIPATE IN AN INFORMAL MEDIATION; AND ISSUE
 S. 8926                            10
 
 A WRITTEN DECISION  WITHIN  FIFTEEN  DAYS  OF  THE  DATE  THE  REQUESTOR
 DECLINES  INFORMAL  MEDIATION  OR DECLARES THE INFORMAL MEDIATION TERMI-
 NATED; OR    IF  UNABLE  TO  REACH  A  DECISION  BASED  ON  THE  WRITTEN
 SUBMISSIONS,  SCHEDULE AN INFORMAL CONFERENCE WITH THE REQUESTOR AND THE
 AGENCY THAT MAY BE CONDUCTED  BY  TELECONFERENCE  OR  WRITTEN  TESTIMONY
 SUBMITTED  BY  ELECTRONIC  MAIL,  AND  ISSUE  A  WRITTEN DECISION WITHIN
 FIFTEEN DAYS OF THE INFORMAL CONFERENCE; OR IF UNABLE TO ISSUE  A  DECI-
 SION  WITHIN  THE TIMES SPECIFIED IN THIS PARAGRAPH AND PARAGRAPH (B) OF
 THIS SUBDIVISION, STATE IN WRITING THE REASON FOR ITS INABILITY TO ISSUE
 A DECISION AND ISSUE A DECISION AS SOON AS POSSIBLE BUT NOT  LATER  THAN
 SIXTY DAYS AFTER THE FILING OF THE APPEAL.
   VII. THE COMMITTEE ON OPEN GOVERNMENT SHALL SEND A COPY OF THE WRITTEN
 DECISION TO THE REQUESTOR AND THE RESPONDING AGENCY.
   (b)  AN  AGENCY  MAY,  WITHIN  THE  STATUTORY TIME FOR ACKNOWLEDGING A
 RECORDS REQUEST UNDER THIS SECTION, SUBMIT A WRITTEN  COMPLAINT  TO  THE
 COMMITTEE ON OPEN GOVERNMENT ALLEGING THAT A REQUESTOR'S RECORDS REQUEST
 OR  PATTERN  OF RECORDS REQUESTS IS FRIVOLOUS, VEXATIOUS, OR MADE IN BAD
 FAITH.
   I. UPON RECEIPT OF A COMPLAINT UNDER THIS SUBDIVISION,  THE  COMMITTEE
 ON  OPEN  GOVERNMENT SHALL SEND A COPY OF THE COMPLAINT TO THE REQUESTOR
 AND REQUEST A WRITTEN RESPONSE THAT  SHALL  BE  PROVIDED  WITHIN  THIRTY
 DAYS.
   II. THE AGENCY OR REQUESTOR SHALL PROVIDE AN AFFIDAVIT OR STATEMENT OF
 FACTS  AT  ISSUE  IN THE COMPLAINT WITHIN THE TIME PROVIDED IN A REQUEST
 THAT THE COMMITTEE ON OPEN GOVERNMENT MAY MAKE.
   III. UPON RECEIPT OF  THE  REQUESTOR'S  RESPONSE  AND  ANY  ADDITIONAL
 INFORMATION  REQUESTED  UNDER  THIS  SUBDIVISION,  THE COMMITTEE ON OPEN
 GOVERNMENT SHALL ISSUE A WRITTEN DECISION WITHIN THIRTY DAYS DETERMINING
 WHETHER THE REQUESTOR'S REQUEST OR PATTERNS OF  REQUESTS  IS  FRIVOLOUS,
 VEXATIOUS, OR MADE IN BAD FAITH.
   IV.  IF  THE  COMMITTEE  ON OPEN GOVERNMENT FINDS THAT THE REQUESTOR'S
 RECORD REQUEST IS FRIVOLOUS, VEXATIOUS, OR MADE IN BAD  FAITH  BASED  ON
 THE TOTALITY OF THE CIRCUMSTANCES, INCLUDING THE NUMBER AND SCOPE OF THE
 REQUESTOR'S  PAST  RECORDS  REQUESTS AND THE AGENCY'S RESPONSES TO THOSE
 REQUESTS AND EFFORTS TO COOPERATE WITH THE REQUESTOR, IT SHALL ISSUE  AN
 ORDER  AUTHORIZING  THE AGENCY TO IGNORE THE RECORDS REQUEST; OR RESPOND
 TO A LESS BURDENSOME VERSION OF THE REQUEST WITHIN A REASONABLE TIME  AS
 DETERMINED BY THE COMMITTEE ON OPEN GOVERNMENT.
   VII. THE COMMITTEE ON OPEN GOVERNMENT SHALL SEND A COPY OF THE WRITTEN
 DECISION TO THE REQUESTOR AND THE COMPLAINING AGENCY.
   (C)  Except  as provided in subdivision five of this section, a person
 denied access to a record in [an appeal determination] A DECISION  under
 the provisions of [paragraph] PARAGRAPHS (a) AND (B) of this subdivision
 may  bring  a  proceeding  for review of such denial pursuant to article
 seventy-eight of the civil practice law and rules.  In  the  event  that
 access to any record is denied pursuant to the provisions of subdivision
 two  of  section eighty-seven of this article, the agency involved shall
 have the burden of proving that such record falls within the  provisions
 of  such  subdivision  two.  [Failure  by  an  agency  to conform to the
 provisions of paragraph (a)  of  this  subdivision  shall  constitute  a
 denial.
   (c)]  (D)  The  court  in  such  a proceeding: (i) [may] SHALL assess,
 against such agency involved, reasonable attorney's fees and other liti-
 gation costs reasonably incurred by such person in any  case  under  the
 provisions  of  this  section  [in  which  such person has substantially
 prevailed, and] when the agency failed to respond to a request or appeal
 S. 8926                            11
 
 within the statutory time; [and] (ii) shall assess, against such  agency
 involved,  reasonable attorney's fees and other litigation costs reason-
 ably incurred by such person in any case under the  provisions  of  this
 section  in  which such person has substantially prevailed and the court
 finds that the agency had no reasonable basis for  denying  access;  AND
 (III)  SHALL  ASSESS, AGAINST SUCH REQUESTOR INVOLVED, REASONABLE ATTOR-
 NEY'S FEES AND OTHER LITIGATION COSTS REASONABLY INCURRED BY  AN  AGENCY
 IN  ANY  CASE  UNDER  THE  PROVISIONS OF THIS SECTION IN WHICH THE COURT
 FINDS THAT  THE  REQUESTOR'S  RECORDS  REQUEST  OR  PATTERN  OF  RECORDS
 REQUESTS IS FRIVOLOUS, VEXATIOUS, OR MADE IN BAD FAITH.
   [(d)]  (E)  (i)  Appeal to the appellate division of the supreme court
 must be made in accordance with subdivision (a)  of  section  fifty-five
 hundred thirteen of the civil practice law and rules.
   (ii) An appeal from an agency taken from an order of the court requir-
 ing disclosure of any or all records sought:
   (A) shall be given preference;
   (B)  shall  be brought on for argument on such terms and conditions as
 the presiding justice may direct, upon application of any party  to  the
 proceeding; and
   (C)  shall be deemed abandoned if the agency fails to serve and file a
 record and brief within sixty days after the date of  service  upon  the
 petitioner  of the notice of appeal, unless consent to further extension
 is given by all parties, or unless further extension is granted  by  the
 court upon such terms as may be just and upon good cause shown.
   (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]  A  BOARD,  BUREAU,  DIVISION,  COMMISSION,
 COMMITTEE,  PUBLIC  AUTHORITY,  PUBLIC  CORPORATION,  COUNCIL, OFFICE OR
 OTHER GOVERNMENTAL ENTITY PERFORMING A GOVERNMENTAL OR PROPRIETARY FUNC-
 TION FOR THE STATE, EXCEPT THE JUDICIARY OR THE STATE LEGISLATURE.
   § 5. This act shall take effect immediately.