§ 89 — General provisions relating to access to records; certain cases

New York § 89

• Jurisdiction: New York
• Law PBO: Public Officers
• Art. 6: Freedom of Information Law

Text

§ 89. General provisions relating to access to records; certain cases.\nThe provisions of this section apply to access to all records, except as\nhereinafter specified:\n 1. (a) The committee on open government is continued and shall consist\nof the lieutenant governor or the delegate of such officer, the\nsecretary of state or the delegate of such officer, whose office shall\nact as secretariat for the committee, the commissioner of the office of\ngeneral services or the delegate of such officer, the director of the\nbudget or the delegate of such officer, and seven other persons, none of\nwhom shall hold any other state or local public office except the\nrepresentative of local governments as set forth herein, to be appointed\nas follows: five by the governor, at least two of whom are or have been\nrepresentatives of the news media, one of whom shall be a representative\nof local government who, at the time of appointment, is serving as a\nduly elected officer of a local government, one by the temporary\npresident of the senate, and one by the speaker of the assembly. The\npersons appointed by the temporary president of the senate and the\nspeaker of the assembly shall be appointed to serve, respectively, until\nthe expiration of the terms of office of the temporary president and the\nspeaker to which the temporary president and speaker were elected. The\nfour persons presently serving by appointment of the governor for fixed\nterms shall continue to serve until the expiration of their respective\nterms. Thereafter, their respective successors shall be appointed for\nterms of four years. The member representing local government shall be\nappointed for a term of four years, so long as such member shall remain\na duly elected officer of a local government. The committee shall hold\nno less than two meetings annually, but may meet at any time. The\nmembers of the committee shall be entitled to reimbursement for actual\nexpenses incurred in the discharge of their duties.\n (b) The committee shall:\n i. furnish to any agency advisory guidelines, opinions or other\nappropriate information regarding this article;\n ii. furnish to any person advisory opinions or other appropriate\ninformation regarding this article;\n iii. promulgate rules and regulations with respect to the\nimplementation of subdivision one and paragraph (c) of subdivision three\nof section eighty-seven of this article;\n iv. request from any agency such assistance, services and information\nas will enable the committee to effectively carry out its powers and\nduties;\n v. develop a form, which shall be made available on the internet, that\nmay be used by the public to request a record; and\n vi. report on its activities and findings regarding this article and\narticle seven of this chapter, including recommendations for changes in\nthe law, to the governor and the legislature annually, on or before\nDecember fifteenth.\n 2. (a) The committee on public access to records may promulgate\nguidelines regarding deletion of identifying details or withholding of\nrecords otherwise available under this article to prevent unwarranted\ninvasions of personal privacy. In the absence of such guidelines, an\nagency may delete identifying details when it makes records available.\n (b) An unwarranted invasion of personal privacy includes, but shall\nnot be limited to:\n i. disclosure of employment, medical or credit histories or personal\nreferences of applicants for employment;\n ii. disclosure of items involving the medical or personal records of a\nclient or patient in a medical facility;\n iii. sale or release of lists of names and addresses if such lists\nwould be used for solicitation or fund-raising purposes;\n iv. disclosure of information of a personal nature when disclosure\nwould result in economic or personal hardship to the subject party and\nsuch information is not relevant to the work of the agency requesting or\nmaintaining it;\n v. disclosure of information of a personal nature reported in\nconfidence to an agency and not relevant to the ordinary work of such\nagency;\n vi. information of a personal nature contained in a workers'\ncompensation record, except as provided by section one hundred ten-a of\nthe workers' compensation law;\n vii. disclosure of electronic contact information, such as an e-mail\naddress or a social network username, that has been collected from a\ntaxpayer under section one hundred four of the real property tax law; or\n viii. disclosure of law enforcement arrest or booking photographs of\nan individual, unless public release of such photographs will serve a\nspecific law enforcement purpose and disclosure is not precluded by any\nstate or federal laws.\n (c) Unless otherwise provided by this article, disclosure shall not be\nconstrued to constitute an unwarranted invasion of personal privacy\npursuant to paragraphs (a) and (b) of this subdivision:\n i. when identifying details are deleted;\n ii. when the person to whom a record pertains consents in writing to\ndisclosure;\n iii. when upon presenting reasonable proof of identity, a person seeks\naccess to records pertaining to him or her; or\n iv. when a record or group of records relates to the right, title or\ninterest in real property, or relates to the inventory, status or\ncharacteristics of real property, in which case disclosure and providing\ncopies of such record or group of records shall not be deemed an\nunwarranted invasion of personal privacy, provided that nothing herein\nshall be construed to authorize the disclosure of electronic contact\ninformation, such as an e-mail address or a social network username,\nthat has been collected from a taxpayer under section one hundred four\nof the real property tax law.\n 2-a. Nothing in this article shall permit disclosure which constitutes\nan unwarranted invasion of personal privacy as defined in subdivision\ntwo of this section if such disclosure is prohibited under section\nninety-six of this chapter.\n 2-b. For records that constitute law enforcement disciplinary records\nas defined in subdivision six of section eighty-six of this article, a\nlaw enforcement agency shall redact the following information from such\nrecords prior to disclosing such records under this article:\n (a) items involving the medical history of a person employed by a law\nenforcement agency as defined in section eighty-six of this article as a\npolice officer, peace officer, or firefighter or firefighter/paramedic,\nnot including records obtained during the course of an agency's\ninvestigation of such person's misconduct that are relevant to the\ndisposition of such investigation;\n (b) the home addresses, personal telephone numbers, personal cell\nphone numbers, personal e-mail addresses of a person employed by a law\nenforcement agency as defined in section eighty-six of this article as a\npolice officer, peace officer, or firefighter or firefighter/paramedic,\nor a family member of such a person, a complainant or any other person\nnamed in a law enforcement disciplinary record, except where required\npursuant to article fourteen of the civil service law, or in accordance\nwith subdivision four of section two hundred eight of the civil service\nlaw, or as otherwise required by law. This paragraph shall not prohibit\nother provisions of law regarding work-related, publicly available\ninformation such as title, salary, and dates of employment;\n (c) any social security numbers; or\n (d) disclosure of the use of an employee assistance program, mental\nhealth service, or substance abuse assistance service by a person\nemployed by a law enforcement agency as defined in section eighty-six of\nthis article as a police officer, peace officer, or firefighter or\nfirefighter/paramedic, unless such use is mandated by a law enforcement\ndisciplinary proceeding that may otherwise be disclosed pursuant to this\narticle.\n 2-c. For records that constitute "law enforcement disciplinary\nrecords" as defined in subdivision six of section eighty-six of this\narticle, a law enforcement agency may redact records pertaining to\ntechnical infractions as defined in subdivision nine of section\neighty-six of this article prior to disclosing such records under this\narticle.\n 3. (a) Each entity subject to the provisions of this article, within\nfive business days of the receipt of a written request for a record\nreasonably described, shall make such record available to the person\nrequesting it, deny such request in writing or furnish a written\nacknowledgement of the receipt of such request and a statement of the\napproximate date, which shall be reasonable under the circumstances of\nthe request, when such request will be granted or denied, including,\nwhere appropriate, a statement that access to the record will be\ndetermined in accordance with subdivision five of this section. An\nagency shall not deny a request on the basis that the request is\nvoluminous or that locating or reviewing the requested records or\nproviding the requested copies is burdensome because the agency lacks\nsufficient staffing or on any other basis if the agency may engage an\noutside professional service to provide copying, programming or other\nservices required to provide the copy, the costs of which the agency may\nrecover pursuant to paragraph (c) of subdivision one of section\neighty-seven of this article. An agency may require a person requesting\nlists of names and addresses to provide a written certification that\nsuch person will not use such lists of names and addresses for\nsolicitation or fund-raising purposes and will not sell, give or\notherwise make available such lists of names and addresses to any other\nperson for the purpose of allowing that person to use such lists of\nnames and addresses for solicitation or fund-raising purposes. If an\nagency determines to grant a request in whole or in part, and if\ncircumstances prevent disclosure to the person requesting the record or\nrecords within twenty business days from the date of the acknowledgement\nof the receipt of the request, the agency shall state, in writing, both\nthe reason for the inability to grant the request within twenty business\ndays and a date certain within a reasonable period, depending on the\ncircumstances, when the request will be granted in whole or in part.\nUpon payment of, or offer to pay, the fee prescribed therefor, the\nentity shall provide a copy of such record and certify to the\ncorrectness of such copy if so requested, or as the case may be, shall\ncertify that it does not have possession of such record or that such\nrecord cannot be found after diligent search. Nothing in this article\nshall be construed to require any entity to prepare any record not\npossessed or maintained by such entity except the records specified in\nsubdivision three of section eighty-seven and subdivision three of\nsection eighty-eight of this article. When an agency has the ability to\nretrieve or extract a record or data maintained in a computer storage\nsystem with reasonable effort, it shall be required to do so. When doing\nso requires less employee time than engaging in manual retrieval or\nredactions from non-electronic records, the agency shall be required to\nretrieve or extract such record or data electronically. Any programming\nnecessary to retrieve a record maintained in a computer storage system\nand to transfer that record to the medium requested by a person or to\nallow the transferred record to be read or printed shall not be deemed\nto be the preparation or creation of a new record.\n (b) All entities shall, provided such entity has reasonable means\navailable, accept requests for records submitted in the form of\nelectronic mail and shall respond to such requests by electronic mail,\nusing forms, to the extent practicable, consistent with the form or\nforms developed by the committee on open government pursuant to\nsubdivision one of this section and provided that the written requests\ndo not seek a response in some other form.\n (c) Each state agency, as defined in subdivision five of this section,\nthat maintains a website shall ensure its website provides for the\nonline submission of a request for records pursuant to this article.\n 4. (a) Except as provided in subdivision five of this section, any\nperson denied access to a record may within thirty days appeal in\nwriting such denial to the head, chief executive or governing body of\nthe entity, or the person therefor designated by such head, chief\nexecutive, or governing body, who shall within ten business days of the\nreceipt of such appeal fully explain in writing to the person requesting\nthe record the reasons for further denial, or provide access to the\nrecord sought. In addition, each agency shall immediately forward to the\ncommittee on open government a copy of such appeal when received by the\nagency and the ensuing determination thereon. Failure by an agency to\nconform to the provisions of subdivision three of this section shall\nconstitute a denial.\n (b) Except as provided in subdivision five of this section, a person\ndenied access to a record in an appeal determination under the\nprovisions of paragraph (a) of this subdivision may bring a proceeding\nfor review of such denial pursuant to article seventy-eight of the civil\npractice law and rules. In the event that access to any record is denied\npursuant to the provisions of subdivision two of section eighty-seven of\nthis article, the agency involved shall have the burden of proving that\nsuch record falls within the provisions of such subdivision two. Failure\nby an agency to conform to the provisions of paragraph (a) of this\nsubdivision shall constitute a denial.\n (c) The court in such a proceeding: (i) may assess, against such\nagency involved, reasonable attorney's fees and other litigation costs\nreasonably incurred by such person in any case under the provisions of\nthis section in which such person has substantially prevailed, and when\nthe agency failed to respond to a request or appeal within the statutory\ntime; and (ii) shall assess, against such agency involved, reasonable\nattorney's fees and other litigation costs reasonably incurred by such\nperson in any case under the provisions of this section in which such\nperson has substantially prevailed and the court finds that the agency\nhad no reasonable basis for denying access.\n (d) (i) Appeal to the appellate division of the supreme court must be\nmade in accordance with subdivision (a) of section fifty-five hundred\nthirteen of the civil practice law and rules.\n (ii) An appeal from an agency taken from an order of the court\nrequiring disclosure of any or all records sought:\n (A) shall be given preference;\n (B) shall be brought on for argument on such terms and conditions as\nthe presiding justice may direct, upon application of any party to the\nproceeding; and\n (C) shall be deemed abandoned if the agency fails to serve and file a\nrecord and brief within sixty days after the date of service upon the\npetitioner of the notice of appeal, unless consent to further extension\nis given by all parties, or unless further extension is granted by the\ncourt upon such terms as may be just and upon good cause shown.\n 5. (a) (1) A person acting pursuant to law or regulation who,\nsubsequent to the effective date of this subdivision, submits any\ninformation to any state agency may, at the time of submission, request\nthat the agency except such information from disclosure under paragraph\n(d) of subdivision two of section eighty-seven of this article. Where\nthe request itself contains information which if disclosed would defeat\nthe purpose for which the exception is sought, such information shall\nalso be excepted from disclosure.\n (1-a) A person or entity who submits or otherwise makes available any\nrecords to any agency, may, at any time, identify those records or\nportions thereof that may contain critical infrastructure information,\nand request that the agency that maintains such records except such\ninformation from disclosure under subdivision two of section\neighty-seven of this article. Where the request itself contains\ninformation which if disclosed would defeat the purpose for which the\nexception is sought, such information shall also be excepted from\ndisclosure.\n (2) The request for an exception shall be in writing and state the\nreasons why the information should be excepted from disclosure.\n (3) Information submitted as provided in subparagraphs one and one-a\nof this paragraph shall be excepted from disclosure and be maintained\napart by the agency from all other records until fifteen days after the\nentitlement to such exception has been finally determined or such\nfurther time as ordered by a court of competent jurisdiction.\n (b) On the initiative of the agency at any time, or upon the request\nof any person for a record excepted from disclosure pursuant to this\nsubdivision, the agency shall:\n (1) inform the person who requested the exception of the agency's\nintention to determine whether such exception should be granted or\ncontinued;\n (2) permit the person who requested the exception, within ten business\ndays of receipt of notification from the agency, to submit a written\nstatement of the necessity for the granting or continuation of such\nexception;\n (3) within seven business days of receipt of such written statement,\nor within seven business days of the expiration of the period prescribed\nfor submission of such statement, issue a written determination\ngranting, continuing or terminating such exception and stating the\nreasons therefor; copies of such determination shall be served upon the\nperson, if any, requesting the record, the person who requested the\nexception, and the committee on public access to records.\n (c) A denial of an exception from disclosure under paragraph (b) of\nthis subdivision may be appealed by the person submitting the\ninformation and a denial of access to the record may be appealed by the\nperson requesting the record in accordance with this subdivision:\n (1) Within seven business days of receipt of written notice denying\nthe request, the person may file a written appeal from the determination\nof the agency with the head of the agency, the chief executive officer\nor governing body or their designated representatives.\n (2) The appeal shall be determined within ten business days of the\nreceipt of the appeal. Written notice of the determination shall be\nserved upon the person, if any, requesting the record, the person who\nrequested the exception and the committee on public access to records.\nThe notice shall contain a statement of the reasons for the\ndetermination.\n (d) (i) A proceeding to review an adverse determination pursuant to\nparagraph (c) of this subdivision may be commenced pursuant to article\nseventy-eight of the civil practice law and rules. Such proceeding, when\nbrought by a person seeking an exception from disclosure pursuant to\nthis subdivision, must be commenced within fifteen days of the service\nof the written notice containing the adverse determination provided for\nin subparagraph two of paragraph (c) of this subdivision. The proceeding\nshall be given preference and shall be brought on for argument on such\nterms and conditions as the presiding justice may direct, not to exceed\nforty-five days.\n (ii) Appeal to the appellate division of the supreme court must be\nmade in accordance with subdivision (a) of section fifty-five hundred\nthirteen of the civil practice law and rules.\n (iii) An appeal taken from an order of the court requiring disclosure:\n (A) shall be given preference; and\n (B) shall be brought on for argument on such terms and conditions as\nthe presiding justice may direct, upon application by any party to the\nproceeding; and\n (C) shall be deemed abandoned when the party requesting an exclusion\nfrom disclosure fails to serve and file a record and brief within sixty\ndays after the date of the notice of appeal, unless consent of further\nextension is given by all parties, or unless further extension is\ngranted by the court upon such terms as may be just and upon good cause\nshown.\n (e) The person requesting an exception from disclosure pursuant to\nthis subdivision shall in all proceedings have the burden of proving\nentitlement to the exception.\n (f) Where the agency denies access to a record pursuant to paragraph\n(d) of subdivision two of section eighty-seven of this article, the\nagency shall have the burden of proving that the record falls within the\nprovisions of such exception.\n (g) Nothing in this subdivision shall be construed to deny any person\naccess, pursuant to the remaining provisions of this article, to any\nrecord or part excepted from disclosure upon the express written consent\nof the person who had requested the exception.\n (h) As used in this subdivision the term "agency" or "state agency"\nmeans only a state department, board, bureau, division, council or\noffice and any public corporation the majority of whose members are\nappointed by the governor.\n 6. Nothing in this article shall be construed to limit or abridge any\notherwise available right of access at law or in equity of any party to\nrecords. A denial of access to records or to portions thereof pursuant\nto this article shall not limit or abridge any party's right of access\nto such records pursuant to the civil practice law and rules, the\ncriminal procedure law, or any other law.\n 7. Nothing in this article shall require the disclosure of the home\naddress of an officer or employee, former officer or employee, or of a\nretiree of a public retirement system of the state, as such term is\ndefined in subdivision twenty-three of section five hundred one of the\nretirement and social security law; nor shall anything in this article\nrequire the disclosure of the name or home address of a beneficiary of a\npublic retirement system of the state, as such term is defined in\nsubdivision twenty-three of section five hundred one of the retirement\nand social security law, or of an applicant for appointment to public\nemployment; provided however, that nothing in this subdivision shall\nlimit or abridge the right of an employee organization, certified or\nrecognized for any collective negotiating unit of an employer pursuant\nto article fourteen of the civil service law, to obtain the name or home\naddress of any officer, employee or retiree of such employer, if such\nname or home address is otherwise available under this article.\n 8. Any person who, with intent to prevent the public inspection of a\nrecord pursuant to this article, willfully conceals or destroys any such\nrecord shall be guilty of a violation.\n 9. When records maintained electronically include items of information\nthat would be available under this article, as well as items of\ninformation that may be withheld, an agency in designing its information\nretrieval methods, whenever practicable and reasonable, shall do so in a\nmanner that permits the segregation and retrieval of available items in\norder to provide maximum public access.\n 10. Nothing in this article shall be construed to limit a person or\nentity that is a party to any civil or criminal action or proceeding\nfrom gaining access to records pursuant to this article relating to such\naction or proceeding, provided, however, that nothing in this\nsubdivision shall prevent the denial of access to such records or\nportions thereof after providing particularized and specific\njustification that such records may be withheld pursuant to this\narticle.\n