S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5707
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 22, 2023
                                ___________
 
 Introduced  by M. of A. STECK -- read once and referred to the Committee
   on Governmental Operations
 
 AN ACT to amend the public officers law, in relation to the  hearing  of
   FOIL appeals by the committee on open government
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. Subdivision 4 of section 89 of the public officers law,  as
 amended  by  chapter 22 of the laws of 2005, paragraph (c) as amended by
 chapter 453 of the laws of 2017 and paragraph (d) as  added  by  chapter
 487 of the laws of 2016, is amended to read as follows:
   4.  (a)  Except  as  provided in subdivision five of this section, any
 person denied access to a record may within thirty days appeal in  writ-
 ing  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,] COMMITTEE ON OPEN GOVERNMENT 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 there-
 on. Failure by an agency to conform to  the  provisions  of  subdivision
 three of this section shall constitute a denial.]
   (b)  Except  as provided in subdivision five of this section, a person
 denied  access  to  a  record  in  an  appeal  determination  under  the
 provisions  of  paragraph (a) 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] COMMITTEE ON OPEN  GOVERNMENT  shall
 have  the burden of proving that such record falls within the provisions
 of such subdivision two. Failure by [an agency] THE  COMMITTEE  ON  OPEN
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD05942-02-3
              

 A. 5707                             2
 
 GOVERNMENT  to conform to the provisions of paragraph (a) of this subdi-
 vision shall constitute a denial.
   (c) The court in such a proceeding: (i) may assess, against such agen-
 cy  involved,  reasonable  attorney's  fees  and  other litigation 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  THE  COMMITTEE  ON  OPEN
 GOVERNMENT FAILED TO RESPOND TO AN appeal within the statutory time; and
 (ii)  shall  assess, against such agency involved, reasonable attorney's
 fees and other litigation costs reasonably 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.
   (d)  (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] THE COMMITTEE ON OPEN GOVERNMENT taken
 from  an  order  of the court requiring 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]  COMMITTEE  ON  OPEN
 GOVERNMENT  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.
   § 2. Subparagraph 1 of paragraph (a) of subdivision 5 of section 89 of
 the public officers law, as amended by chapter 403 of the laws of  2003,
 is amended to read as follows:
   (1)  A  person acting pursuant to law or regulation who, subsequent 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  subdivi-
 sion  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 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.
   § 3. Subparagraph 1 of paragraph (c) of subdivision 5 of section 89 of
 the public officers law, as added by chapter 890 of the laws of 1981, is
 amended to read as follows:
   (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] COMMITTEE ON OPEN
 GOVERNMENT.
   § 4. This act shall take effect immediately.