NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6613
SPONSOR: McDonald TITLE OF BILL:
An act to amend the public officers law, in relation to permitting
records required to be disclosed under the freedom of information law to
have exempt parts of such documents be redacted before disclosure
PURPOSE:
The purpose of this bill is to clarify a certain provision of the Free-
dom of Information Law (FOIL).
SUMMARY OF PROVISIONS:
Section I: Amends subdivision 2, section 87 of the public officers law
to clarify that when a portion of a record may be denied under FOIL, an
agency may redact or withhold those portions, but must disclose the
remaining portions.
Section 2: Sets effective date.
JUSTIFICATION:
The language in this bill was drafted based on a recommendation in the
Committee on Open Government (COOG) 2024 annual report. The bill is a
response to certain court decisions and clarifies New York's Freedom of
Information Law as it pertains to redactions and disclosure.
New York's Freedom of Information Law (FOIL) is clear: When part of a
record is exempt from FOIL, agencies must still disclose the parts that
are not exempt. Unfortunately, the Appellate Division, First Department
- which deals with some of NY's most important cases - has misinterpret-
ed the law to state that when part of a record is exempt, the agency may
withhold the entire record.
As COOG has pointed out, this interpretation contradicts the law. COOG
stated in a September 2024 Advisory Opinion (FOIL AO 19866) that agen-
cies "may withhold the record if disclosure 'would constitute an unwar-
ranted invasion of personal privacy under the provisions of subdivision
two of section eighty-nine of this article' (POL § 87(2)(b)), but that
'disclosure shall not be construed to constitute an unwarranted invasion
of personal privacy . . . when identifying details are deleted' (POL §
89(2) (c) (i))."
COOG also notes that the First Department's findings contradict the
state's own case law. In their AO, COOG quotes an influential 1985 deci-
sion stating that "to the extent the reports contain 'statistical or
factual tabulations or data' (Public Officers Law § 87 or other material
subject to production, they should be redacted and made available to
appellant."
The intent of FOIL and these decisions is obvious, but the First Depart-
ment has continued to misinterpret the law. This bill will help ensure
that courts correctly apply FOIL regarding what information must be
disclosed to the public.
LEGISLATIVE HISTORY:
New Bill
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
6613
2025-2026 Regular Sessions
IN ASSEMBLY
March 6, 2025
___________
Introduced by M. of A. McDONALD -- read once and referred to the Commit-
tee on Governmental Operations
AN ACT to amend the public officers law, in relation to permitting
records required to be disclosed under the freedom of information law
to have exempt parts of such documents be redacted before disclosure
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The opening paragraph of subdivision 2 of section 87 of the
2 public officers law, as amended by chapter 808 of the laws of 2021, is
3 amended to read as follows:
4 Each agency shall, in accordance with its published rules, make avail-
5 able for public inspection and copying all records, except those records
6 or portions thereof that may be withheld pursuant to the exceptions of
7 rights of access appearing in this subdivision. Except for any record
8 that is exempt from disclosure by state or federal statute pursuant to
9 paragraph (a) of this subdivision, when a record contains portions that
10 may be denied pursuant to this article, as well as portions that must be
11 disclosed, an agency may redact or withhold the portions subject to one
12 or more of the permissible grounds for denial, but shall disclose the
13 remaining portions. A denial of access shall not be based solely on the
14 category or type of such record and shall be valid only when there is a
15 particularized and specific justification for such denial. Each agency
16 shall, in accordance with its published rules, make available for public
17 inspection and copying all records, except that such agency may deny
18 access to records or portions thereof that:
19 § 2. This act shall take effect immediately.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00328-01-5
