S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3257
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 30, 2023
                                ___________
 
 Introduced  by Sen. HOYLMAN-SIGAL -- read twice and ordered printed, and
   when printed to be committed to the Committee  on  Investigations  and
   Government 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07823-01-3
              

 S. 3257                             2
 
 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 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
 S. 3257                             3
 
 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. 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.