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A05470 Summary:

BILL NOA05470
 
SAME ASSAME AS S06017
 
SPONSOREnglebright
 
COSPNSRGlick, Galef, Peoples-Stokes, Rosenthal L, Abinanti, Seawright, Reyes, Lupardo, Vanel, Barron
 
MLTSPNSRPerry
 
Amd §§87 & 89, Pub Off L; amd §50-b, Civ Rts L
 
Requires a particularized and specific justification for denial of access to records under the freedom of information law; relates to exemption from disclosure under the freedom of information law of certain law enforcement related records and records identifying victims.
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A05470 Actions:

BILL NOA05470
 
02/18/2021referred to governmental operations
02/23/2021reported referred to codes
03/01/2021reported
03/04/2021advanced to third reading cal.148
03/18/2021passed assembly
03/18/2021delivered to senate
03/18/2021REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
06/08/2021SUBSTITUTED FOR S6017
06/08/20213RD READING CAL.679
06/08/2021PASSED SENATE
06/08/2021RETURNED TO ASSEMBLY
12/17/2021delivered to governor
12/29/2021signed chap.808
12/29/2021approval memo.157
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A05470 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5470
 
SPONSOR: Englebright
  TITLE OF BILL: An act to amend the public officers law, in relation to requiring a particularized and specific justification for denial of access to records under the freedom of information law and exemption from disclo- sure under the freedom of information law of certain law enforcement related records; and to amend the civil rights law, in relation to records identifying victims   PURPOSE OR GENERAL IDEA OF BILL: The purpose of this legislation is to clarify certain provisions of FOIL and other disclosure laws to make sure that people are not wrongfully denied access to public records.   SUMMARY OF PROVISIONS: This bill would make changes to the Freedom of Information Law (FOIL) and to section 50-b of the civil rights law. This bill would provide that when an agency is considering denying access to records under the law enforcement exception to FOIL on the grounds that disclosure would interfere with a judicial proceeding, then the decision of whether to grant access would be made by the judge presiding over that judicial proceeding. This bill would clarify that a denial of access to records under FOIL does not prevent a person from obtaining records under any other law. In addition, the bill would clarify that parties to any civil or criminal action or proceeding can use FOIL to obtain records concern- ing the action or proceeding. Furthermore, this bill clarifies that access to a record cannot be withheld due to the type or category of record. This bill would also amend the law enforcement exception to FOIL to make clear that records cannot be withheld solely because they relate in some manner to an investigation or criminal proceeding. This bill would also amend section 50-b of the civil rights law to clarify that only the portions of a report that would identify a victim of a sexual offense are exempt from disclosure.   DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):   JUSTIFICATION: FOIL provides individuals with greater access to their government which helps achieve the goal of an open and transparent government. To that end, there is a strong presumption under FOIL that government records are accessible to the public and there are several defined exceptions of access to records. Under current law, access to records or to portions of records is sometimes withheld when they should not be. Too often records that were prepared in the ordinary course of business, which should be accessible to the public, have been withheld. This bill would clarify certain provisions of FOIL and section 50-b of the civil rights law to make sure that people are not wrongfully denied access to public records.   PRIOR LEGISLATIVE HISTORY: 2011-12 A9460 referred to investigations and government operations 2013-14 A5170 referred to investigations and government operations 2015-16 A4468 referred to investigations and government operations 2017-18 A3463 referred to investigations and government operations 2019-20 A3939 vetoed memo. 252 of 2019   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None to the State   EFFECTIVE DATE: This act shall take effect immediately.
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A05470 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5470
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 18, 2021
                                       ___________
 
        Introduced  by  M.  of  A.  ENGLEBRIGHT,  GLICK,  GALEF, PEOPLES-STOKES,
          L. ROSENTHAL, ABINANTI, SEAWRIGHT, REYES, LUPARDO  --  Multi-Sponsored
          by  --  M. of A.   PERRY -- read once and referred to the Committee on
          Governmental Operations
 
        AN ACT to amend the public officers law,  in  relation  to  requiring  a
          particularized  and  specific  justification  for  denial of access to
          records under the  freedom  of  information  law  and  exemption  from
          disclosure  under  the  freedom  of  information  law  of  certain law
          enforcement related records; and to amend the  civil  rights  law,  in
          relation to records identifying victims
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Section 87 of the public officers law is amended by  adding
     2  a new subdivision 6 to read as follows:
     3    6.  When a request is made for agency records and the agency receiving
     4  such request is considering denying access pursuant to subparagraph i of
     5  paragraph (e) of subdivision two of this section  on  the  grounds  that
     6  disclosure  would  interfere  with  a  judicial  proceeding,  the agency
     7  receiving such request shall promptly  notify,  in  writing,  the  judge
     8  before  whom  such  judicial proceeding is pending and the person making
     9  the request. Such judge shall notify the person requesting the record of
    10  its receipt, and offer the person requesting  the  record  a  reasonable
    11  opportunity to be heard. After due deliberation, such judge shall deter-
    12  mine whether access to such records should be denied pursuant to subpar-
    13  agraph  i  of paragraph (e) of subdivision two of this section and shall
    14  submit such determination in  writing  to  the  agency  and  the  person
    15  requesting the record.  The agency shall then proceed as required pursu-
    16  ant to this article, in accordance with the court's determination.
    17    §  2. Subdivision 6 of section 89 of the public officers law, as added
    18  by chapter 933 of the laws of 1977 and as renumbered by chapter  890  of
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07836-01-1

        A. 5470                             2
 
     1  the  laws  of 1981, is amended and a new subdivision 10 is added to read
     2  as follows:
     3    6.  Nothing in this article shall be construed to limit or abridge any
     4  otherwise available right of access at law or in equity of any party  to
     5  records.  A  denial of access to records or to portions thereof pursuant
     6  to this article shall not limit or abridge any party's right  of  access
     7  to such records pursuant to the civil practice law and rules, the crimi-
     8  nal procedure law, or any other law.
     9    10.  Nothing  in  this article shall be construed to limit a person or
    10  entity that is a party to any civil or  criminal  action  or  proceeding
    11  from gaining access to records pursuant to this article relating to such
    12  action  or  proceeding, provided, however, that nothing in this subdivi-
    13  sion shall prevent the denial of access  to  such  records  or  portions
    14  thereof  after  providing particularized and specific justification that
    15  such records may be withheld pursuant to this article.
    16    § 3. The opening paragraph and  paragraph  (e)  of  subdivision  2  of
    17  section  87  of  the public officers law, as added by chapter 933 of the
    18  laws of 1977, are amended to read as follows:
    19    Each agency shall, in accordance with its published rules, make avail-
    20  able for public inspection and copying all records, except those records
    21  or portions thereof that may be withheld pursuant to the  exceptions  of
    22  rights of access appearing in this subdivision. A denial of access shall
    23  not  be based solely on the category or type of such record and shall be
    24  valid only when there is a particularized and specific justification for
    25  such denial. Each agency shall, in accordance with its published  rules,
    26  make  available  for  public  inspection and copying all records, except
    27  that such agency may deny access to records or portions thereof that:
    28    (e) are [compiled] prepared or created for  law  enforcement  purposes
    29  [and  which,  if  disclosed,  would]  only to the extent that disclosure
    30  would:
    31    i.  interfere  with  law  enforcement   investigations   or   judicial
    32  proceedings,  provided  however,  that  any  agency  considering denying
    33  access pursuant to this subparagraph shall proceed  in  accordance  with
    34  subdivision six of this section;
    35    ii.  deprive  a person of a right to a fair trial or impartial adjudi-
    36  cation;
    37    iii. identify a confidential source or disclose confidential  informa-
    38  tion relating to a criminal investigation; or
    39    iv.  reveal  criminal  investigative  techniques or procedures, except
    40  routine techniques and procedures;
    41    § 4. Subdivision 1 of section 50-b of the civil rights law, as amended
    42  by chapter 320 of the laws of 2006, is amended to read as follows:
    43    1. The identity of any victim of a sex offense, as defined in  article
    44  one hundred thirty or section 255.25, 255.26 or 255.27 of the penal law,
    45  or of an offense involving the alleged transmission of the human immuno-
    46  deficiency  virus,  shall  be  confidential.  No  portion of any report,
    47  paper, picture, photograph, court file or other documents, in the custo-
    48  dy or possession of any public officer  or  employee,  which  identifies
    49  such  a  victim  shall  be made available for public inspection. No such
    50  public officer or employee shall disclose  any  portion  of  any  police
    51  report,  court  file,  or other document, which tends to identify such a
    52  victim except as provided in subdivision two of this section.
    53    § 5. This act shall take effect immediately.
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