S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9975
 
                           I N  A S S E M B L Y
 
                                May 1, 2024
                                ___________
 
 Introduced  by  M.  of  A. L. ROSENTHAL -- 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
 707 of the laws of 2019, 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
 should be excepted, FOR A DEFINED PERIOD OF TIME, from disclosure.   THE
 SUBMITTER  MAY ALSO PROVIDE A DATE BY WHICH SUCH EXCEPTION SHALL EXPIRE,
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07823-01-3
              

 A. 9975                             2
 
 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  TWENTY-THREE  THAT  AMENDED  THIS
 SUBDIVISION AND as provided in subparagraphs one and one-a of this para-
 graph shall be excepted from disclosure FOR A DEFINED PERIOD OF TIME and
 be maintained apart by the agency from all other records until THE EXPI-
 RATION  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) (i) A proceeding to review an adverse  determination  pursuant  to
 paragraph  (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
 A. 9975                             3
 
 of the written notice containing the adverse determination provided  for
 in subparagraph two of paragraph (c) of this subdivision. The proceeding
 shall  be  given preference and shall be brought on for argument on such
 terms  and conditions as the presiding justice may direct, not to exceed
 forty-five days.
   (ii) 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.
   (iii) An appeal taken from an order of the court requiring disclosure:
   (A) shall be given preference; and
   (B) shall be brought on for argument on such terms and  conditions  as
 the  presiding  justice may direct, upon application by any party to the
 proceeding; and
   (C) shall be deemed abandoned when the party requesting  an  exclusion
 from  disclosure fails to serve and file a record and brief within sixty
 days after the date of the notice of appeal, unless consent  of  further
 extension is given by all parties, or unless further extension is grant-
 ed  by  the  court  upon  such  terms as may be just and upon good cause
 shown.
   (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.