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A01410 Summary:

BILL NOA01410
 
SAME ASSAME AS S05000
 
SPONSORRosenthal
 
COSPNSR
 
MLTSPNSR
 
Amd §89, Pub Off L
 
Requires entities that submit records to state agencies that are excepted from disclosure under FOIL to periodically re-apply for the exception.
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A01410 Actions:

BILL NOA01410
 
01/09/2025referred to governmental operations
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A01410 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A1410
 
SPONSOR: Rosenthal
  TITLE OF BILL: 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-apply for the exception   PURPOSE OR GENERAL IDEA OF THE BILL: The purpose of this bill is to provide for greater disclosure under the Freedom of Information Law.   SUMMARY OF SPECIFIC PROVISIONS: This bill would require that, subsequent to the effective date, when an entity submits a request to a state agency to have trade secrets excluded from release under the Freedom of Information Law, the request must specifically identify which portions of the record are to be excluded. The requester would also be able to set an expiration date for the exclusions, provided that such a date is not greater than 3 years. If the state agency agrees to the exclusions and the submitter did not set an expiration date, after 3 years the submitter must apply to the agency for a 3 year extension, upon which the agency must make a deter- mination as to if the exclusions should be extended. If the submitter does not apply for the extension, the exclusion will be considered to have expired. The bill also makes some technical changes to the Public Meetings Law.   JUSTIFICATION: Under current law, when an entity submits records to a state agency, that entity may identify portions of those records that should be excluded from release under the Freedom of Information Law (FOIL) as trade secrets. If approved, the exclusion remains in force until a FOIL request is made for those records. The agency must then contact the entity to determine if the records must continue to be with- held or if they can be released. If no FOIL request is made, the exclusion remains in force indefinitely. This bill would streamline this process by requiring entities to reapply for the exclusion every 3 years. If an entity does not re-apply, the exclusion is considered to be expired and the document can be released when a FOIL request is made.   PRIOR LEGISLATIVE HISTORY: 2023-24: A.9975 - Referred to Governmental Operations   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: The act shall take effect immediately.
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A01410 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          1410
 
                               2025-2026 Regular Sessions
 
                   IN ASSEMBLY
 
                                     January 9, 2025
                                       ___________
 
        Introduced  by  M.  of  A.  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:
 
     1    Section  1. Subdivision 5 of section 89 of the public officers law, as
     2  added by chapter 890 of the laws of 1981, paragraph (a)  as  amended  by
     3  chapter  403 of the laws of 2003 and paragraph (d) as amended by chapter
     4  707 of the laws of 2019, is amended to read as follows:
     5    5. (a) (1) A person acting pursuant to law or regulation  who,  subse-
     6  quent to the effective date of this subdivision, submits any information
     7  to  any  state  agency  may, at the time of submission, request that the
     8  agency except such information from disclosure under  paragraph  (d)  of
     9  subdivision  two  of  section  eighty-seven  of  this article. Where the
    10  request itself contains information which if disclosed would defeat  the
    11  purpose  for  which the exception is sought, such information shall also
    12  be excepted from disclosure.
    13    (1-a) A person or entity who submits or otherwise makes available  any
    14  records  to  any  agency,  may,  at  any time, identify those records or
    15  portions thereof that may contain critical  infrastructure  information,
    16  and  request  that  the  agency  that maintains such records except such
    17  information from disclosure under subdivision two of section eighty-sev-
    18  en of this article. Where the request itself contains information  which
    19  if disclosed would defeat the purpose for which the exception is sought,
    20  such information shall also be excepted from disclosure.
    21    (2)  (i)  The  request  for  an  exception  shall be in writing, shall
    22  specifically identify which portions of the record are  the  subject  of
    23  the  request  for  exception  and  state the reasons why the information
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04299-01-5

        A. 1410                             2
 
     1  should be excepted, for a defined period of time, from disclosure.   The
     2  submitter  may also provide a date by which such exception shall expire,
     3  provided that such date shall not exceed three years from  the  time  of
     4  the agency's receipt of the request for an exception.
     5    (ii)  Not  less  than  sixty  days prior to the expiration of the then
     6  current term of the exception request, the submitter may  apply  to  the
     7  agency  for a three-year extension of its exception request. Upon timely
     8  receipt of a request for an extension of an exception request, an agency
     9  shall review the application and either  grant  or  deny  the  extension
    10  request. A denial of an extension request may be appealed by the submit-
    11  ter  pursuant  to  paragraph  (c)  of this subdivision. If the submitter
    12  fails to apply for an extension, the exception shall  be  considered  to
    13  have expired.
    14    (3)  Information  submitted  subsequent  to  the effective date of the
    15  chapter of the laws of two thousand twenty-five that amended this subdi-
    16  vision and as provided in subparagraphs one and one-a of this  paragraph
    17  shall  be  excepted  from disclosure for a defined period of time and be
    18  maintained apart by the agency from all other records until the  expira-
    19  tion  of  the  submitter's  exception  request or fifteen days after the
    20  entitlement to such  exception  has  been  finally  determined  or  such
    21  further time as ordered by a court of competent jurisdiction.
    22    (b)  [On]  During  the  effective period of an exception request under
    23  this subdivision, on the initiative of the agency at any time,  or  upon
    24  the request of any person for a record excepted from disclosure pursuant
    25  to this subdivision, the agency shall:
    26    (1)  inform  the  person  who  requested the exception of the agency's
    27  intention to determine whether  such  exception  should  be  granted  or
    28  continued;
    29    (2) permit the person who requested the exception, within ten business
    30  days  of  receipt  of  notification from the agency, to submit a written
    31  statement of the necessity for the  granting  or  continuation  of  such
    32  exception;
    33    (3)  within  seven business days of receipt of such written statement,
    34  or within seven business days of the expiration of the period prescribed
    35  for submission of such statement, issue a written  determination  grant-
    36  ing,  continuing  or  terminating such exception and stating the reasons
    37  therefor; copies of such determination shall be served upon the  person,
    38  if  any,  requesting the record, the person who requested the exception,
    39  and the committee on [public access to records] open government.
    40    (c) A denial of an exception from disclosure under  paragraph  (b)  of
    41  this  subdivision  may be appealed by the person submitting the informa-
    42  tion and a denial of access to the record may be appealed by the  person
    43  requesting the record in accordance with this subdivision:
    44    (1)  Within  seven  business days of receipt of written notice denying
    45  the request, the person may file a written appeal from the determination
    46  of the agency with the head of the agency, the chief  executive  officer
    47  or governing body or their designated representatives.
    48    (2)  The  appeal  shall  be determined within ten business days of the
    49  receipt of the appeal. Written notice  of  the  determination  shall  be
    50  served  upon  the  person, if any, requesting the record, the person who
    51  requested the exception and the committee on [public access to  records]
    52  open  government.    The notice shall contain a statement of the reasons
    53  for the determination.
    54    (d) (i) A proceeding to review an adverse  determination  pursuant  to
    55  paragraph  (c)  of this subdivision may be commenced pursuant to article
    56  seventy-eight of the civil practice law and rules. Such proceeding, when

        A. 1410                             3
 
     1  brought by a person seeking an exception  from  disclosure  pursuant  to
     2  this  subdivision,  must be commenced within fifteen days of the service
     3  of the written notice containing the adverse determination provided  for
     4  in subparagraph two of paragraph (c) of this subdivision. The proceeding
     5  shall  be  given preference and shall be brought on for argument on such
     6  terms and conditions as the presiding justice may direct, not to  exceed
     7  forty-five days.
     8    (ii)  Appeal  to  the  appellate division of the supreme court must be
     9  made in accordance with subdivision (a) of  section  fifty-five  hundred
    10  thirteen of the civil practice law and rules.
    11    (iii) An appeal taken from an order of the court requiring disclosure:
    12    (A) shall be given preference; and
    13    (B)  shall  be brought on for argument on such terms and conditions as
    14  the presiding justice may direct, upon application by any party  to  the
    15  proceeding; and
    16    (C)  shall  be deemed abandoned when the party requesting an exclusion
    17  from disclosure fails to serve and file a record and brief within  sixty
    18  days  after  the date of the notice of appeal, unless consent of further
    19  extension is given by all parties, or unless further extension is grant-
    20  ed by the court upon such terms as may  be  just  and  upon  good  cause
    21  shown.
    22    (e)  The  person  requesting  an exception from disclosure pursuant to
    23  this subdivision shall in all proceedings have  the  burden  of  proving
    24  entitlement to the exception.
    25    (f)  Where  the agency denies access to a record pursuant to paragraph
    26  [(d) of] (b) of this subdivision in conjunction with subdivision two  of
    27  section  eighty-seven  of this article, the agency shall have the burden
    28  of proving that the record falls within the provisions  of  such  excep-
    29  tion.
    30    (g)  Nothing in this subdivision shall be construed to deny any person
    31  access, pursuant to the remaining provisions of  this  article,  to  any
    32  record or part excepted from disclosure upon the express written consent
    33  of the person who had requested the exception.
    34    (h)  As  used  in this subdivision the term "agency" or "state agency"
    35  means only a state  department,  board,  bureau,  division,  council  or
    36  office  and  any  public  corporation  the majority of whose members are
    37  appointed by the governor.
    38    § 2. This act shall take effect immediately.
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