S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  3438--A
     Cal. No. 1408
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 31, 2023
                                ___________
 
 Introduced  by  Sen. SKOUFIS -- read twice and ordered printed, and when
   printed to be committed to the Committee on Investigations and Govern-
   ment Operations -- recommitted to the Committee on Investigations  and
   Government  Operations  in  accordance  with  Senate Rule 6, sec. 8 --
   reported favorably from  said  committee,  ordered  to  first  report,
   amended  on  first  report,  ordered  to  a  second report and ordered
   reprinted, retaining its place in the order of second report
 
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06932-02-4
 S. 3438--A                          2
 
 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.
   § 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 12 and 13 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.
   12.  "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
 S. 3438--A                          3
 
 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.
   13.  "BUSINESS  DAYS"  AND  "DAYS"  SHALL  BE  CALCULATED FROM DATE OF
 SUBMISSION, IF ELECTRONIC, OR ELSE POSTMARK DATE.
   § 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 7 of the laws of 2023, paragraph (d) of subdivision 2
 as amended by chapter 289 of the laws of 1990, paragraph (e) of subdivi-
 sion 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. except when a different fee is otherwise prescribed by statute:
   (1) the fees for paper copies of records 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.
   (2)  In  the  case  where  an identical record has been prepared for a
 previous request within the past 6 months  and  an  electronic  copy  is
 available, an agency shall not charge a fee for the reproduction of such
 record,  except  for the actual cost of a storage device or media if one
 is provided to the requester in complying with such request.
   (c) if disclosed would impair present or imminent contract  awards  or
 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
 S. 3438--A                          4
 
 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;
   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.
 S. 3438--A                          5
 
   (E) EVERY AGENCY SHALL MAKE AVAILABLE ON ITS WEBSITE'S HOMEPAGE A LINK
 TO THAT AGENCY'S CURRENT FISCAL YEAR BUDGET.
   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
 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.
 S. 3438--A                          6
 
   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
 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.
 S. 3438--A                          7
 
   (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 THEIR TENURE AS  EXECUTIVE  DIRECTOR
 AND FOR ONE YEAR THEREAFTER.
   (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
 S. 3438--A                          8
 
 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-
 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 RECORD OR 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
 S. 3438--A                          9
 
 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
 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.
 S. 3438--A                         10
 
   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
 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.
   V. 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.
   V.  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
 S. 3438--A                         11
 
 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
 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.