NY Pub Off L § 89 (2021)
2021 New York Laws PBO - Public Officers Article 6 - Freedom of Information Law 89 - General Provisions Relating to Access to Records; Certain Cases.

§ 89. General provisions relating to access to records; certain cases. The provisions of this section apply to access to all records, except as hereinafter specified:   1. (a) 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 president  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 expiration 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. The committee shall hold no less than two meetings annually,  but  may  meet  at  any  time.  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;   ii.  furnish  to  any  person  advisory  opinions or other appropriate information regarding this article;   iii.  promulgate  rules  and   regulations   with   respect   to   the implementation of subdivision one and paragraph (c) of subdivision three of section eighty-seven of this article;   iv.  request from any agency such assistance, services and information as will enable the committee to effectively carry  out  its  powers  and duties;   v. develop a form, which shall be made available on the internet, that may be used by the public to request a record; and   vi.  report  on its activities and findings 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.   2. (a) The committee  on  public  access  to  records  may  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 and  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 confidence to an agency and not relevant to the ordinary  work  of  such agency;   vi.   information  of  a  personal  nature  contained  in  a  workers' compensation 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.  (c) Unless otherwise provided by this article, disclosure shall not be construed to constitute an  unwarranted  invasion  of  personal  privacy pursuant to paragraphs (a) and (b) of this subdivision:   i. when identifying details are deleted;   ii.  when  the person to whom a record pertains consents in writing to disclosure;   iii. when upon presenting reasonable proof of identity, a person seeks access to records pertaining to him or her; or   iv. when a record or group of records relates to the right,  title  or interest  in  real  property,  or  relates  to  the inventory, status or characteristics of real property, in which case disclosure and providing copies of such record or  group  of  records  shall  not  be  deemed  an unwarranted  invasion  of personal privacy, provided that nothing herein shall be construed to authorize the  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.   2-a. Nothing in this article shall permit disclosure which constitutes an  unwarranted  invasion  of personal privacy as defined in subdivision two of this section if  such  disclosure  is  prohibited  under  section ninety-six of this chapter.   2-b.  For records that constitute law enforcement disciplinary records as defined in subdivision six of section eighty-six of this  article,  a law  enforcement agency shall redact the following information from such records prior to disclosing such records under this article:  (a) items involving the medical history of a person employed by a  law enforcement agency as defined in section eighty-six of this article as a police  officer, peace officer, or firefighter or firefighter/paramedic, not  including  records  obtained  during  the  course  of  an  agency's investigation  of  such  person's  misconduct  that  are relevant to the disposition of such investigation;  (b) the home addresses,  personal  telephone  numbers,  personal  cell phone  numbers,  personal e-mail addresses of a person employed by a law enforcement agency as defined in section eighty-six of this article as a police officer, peace officer, or firefighter or  firefighter/paramedic, or  a  family member of such a person, a complainant or any other person named in a law enforcement disciplinary record,  except  where  required pursuant  to article fourteen of the civil service law, or in accordance with subdivision four of section two hundred eight of the civil  service  law,  or as otherwise required by law. This paragraph shall not prohibit other provisions  of  law  regarding  work-related,  publicly  available information such as title, salary, and dates of employment;  (c) any social security numbers; or  (d)  disclosure  of  the use of an employee assistance program, mental health service, or  substance  abuse  assistance  service  by  a  person employed by a law enforcement agency as defined in section eighty-six of this  article  as  a  police  officer,  peace officer, or firefighter or firefighter/paramedic, unless such use is mandated by a law  enforcement disciplinary proceeding that may otherwise be disclosed pursuant to this article.   2-c.   For  records  that  constitute  "law  enforcement  disciplinary records" as defined in subdivision six of  section  eighty-six  of  this article,  a  law  enforcement  agency  may  redact records pertaining to technical  infractions  as  defined  in  subdivision  nine  of   section eighty-six  of  this article prior to disclosing such records under this article.   3. (a) Each entity subject to the provisions of this  article,  within five  business  days  of  the  receipt of a written request for a record reasonably described, shall make such record  available  to  the  person requesting  it,  deny  such  request  in  writing  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 will be determined in accordance with  subdivision  five  of  this  section.  An agency  shall  not  deny  a  request  on  the  basis that the request is voluminous or that  locating  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. An agency may require a person requesting lists of names and addresses to provide  a  written  certification  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 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 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. Upon  payment  of,  or  offer  to  pay, the fee prescribed therefor, the entity  shall  provide  a  copy  of  such  record  and  certify  to  the correctness  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  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 transfer 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) 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 subdivision  one  of this section and provided that the written requests do not seek a response in some other form.  (c) 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.   4.  (a)  Except  as  provided in subdivision five of this section, any person denied access to a  record  may  within  thirty  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. Failure by  an  agency  to conform  to  the  provisions  of subdivision three of this section shall constitute a denial.  (b) Except as provided in subdivision five of this section,  a  person denied  access  to  a  record  in  an  appeal  determination  under  the provisions of paragraph (a) 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 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)  The  court  in  such  a  proceeding: (i) may assess, against such agency involved, reasonable attorney's fees and other  litigation  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 reasonably 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.  (d)  (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 requiring 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.   5.  (a)  (1)  A  person  acting  pursuant  to  law  or regulation who, subsequent to the  effective  date  of  this  subdivision,  submits  any information  to any state agency may, at the time of submission, request that the agency except such information from disclosure under  paragraph (d)  of  subdivision  two of section eighty-seven of this article. Where the request itself contains information which if disclosed would  defeat the  purpose  for  which the exception is sought, such information shall also be excepted from disclosure.  (1-a) A person or entity who submits or otherwise makes available  any records  to  any  agency,  may,  at  any time, identify those records or portions thereof that may contain critical  infrastructure  information, and  request  that  the  agency  that maintains such records except such information  from  disclosure   under   subdivision   two   of   section eighty-seven   of  this  article.  Where  the  request  itself  contains information which if disclosed would defeat the purpose  for  which  the exception  is  sought,  such  information  shall  also  be excepted from disclosure.  (2) The request for an exception shall be in  writing  and  state  the reasons why the information should be excepted from disclosure.  (3)  Information  submitted as provided in subparagraphs one and one-a of this paragraph shall be excepted from disclosure  and  be  maintained apart  by the agency from all other records until fifteen days after the entitlement to such  exception  has  been  finally  determined  or  such further time as ordered by a court of competent jurisdiction.  (b)  On  the initiative of the agency at any time, or upon the request of any person for a record excepted from  disclosure  pursuant  to  this subdivision, the agency shall:  (1)  inform  the  person  who  requested the exception of the agency's intention to determine whether  such  exception  should  be  granted  or continued;  (2) permit the person who requested the exception, within ten business days  of  receipt  of  notification from the agency, to submit a written statement of the necessity for the  granting  or  continuation  of  such exception;  (3)  within  seven business days of receipt of such written statement, or within seven business days of the expiration of the period prescribed for  submission  of  such  statement,  issue  a  written   determination granting,  continuing  or  terminating  such  exception  and stating the reasons therefor; copies of such determination shall be served upon  the person,  if  any,  requesting  the  record, the person who requested the exception, and the committee on public access to records.  (c) A denial of an exception from disclosure under  paragraph  (b)  of this   subdivision   may  be  appealed  by  the  person  submitting  the information and a denial of access to the record may be appealed by  the person requesting the record in accordance with this subdivision:  (1)  Within  seven  business days of receipt of written notice denying the request, the person may file a written appeal from the determination of the agency with the head of the agency, the chief  executive  officer or governing body or their designated representatives.  (2)  The  appeal  shall  be determined within ten business days of the receipt of the appeal. Written notice  of  the  determination  shall  be served  upon  the  person, if any, requesting the record, the person who requested the exception and the committee on public access  to  records.  The   notice   shall   contain  a  statement  of  the  reasons  for  the determination.  (d)  (i)  A  proceeding to review an adverse determination pursuant to paragraph (c) of this subdivision may be commenced pursuant  to  article seventy-eight of the civil practice law and rules. Such proceeding, when brought  by  a  person  seeking an exception from disclosure pursuant to this subdivision, must be commenced within fifteen days of  the  service of  the written notice containing the adverse determination provided for in subparagraph two of paragraph (c) of this subdivision. The proceeding shall be given preference and shall be brought on for argument  on  such terms  and conditions as the presiding justice may direct, not to exceed forty-five days.  (ii) 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.  (iii) An appeal taken from an order of the court requiring disclosure:  (A) shall be given preference; and  (B) shall be brought on for argument on such terms and  conditions  as the  presiding  justice may direct, upon application by any party to the proceeding; and  (C) shall be deemed abandoned when the party requesting  an  exclusion from  disclosure fails to serve and file a record and brief within sixty days after the date of the notice of appeal, unless consent  of  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.  (e)  The  person  requesting  an exception from disclosure pursuant to this subdivision shall in all proceedings have  the  burden  of  proving entitlement to the exception.  (f)  Where  the agency denies access to a record pursuant to paragraph (d) of subdivision two of section  eighty-seven  of  this  article,  the agency shall have the burden of proving that the record falls within the provisions of such exception.  (g)  Nothing in this subdivision shall be construed to deny any person access, pursuant to the remaining provisions of  this  article,  to  any record or part excepted from disclosure upon the express written consent of the person who had requested the exception.  (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.   6. Nothing in this article shall be construed to limit or abridge  any otherwise  available right of access at law or in equity of any party to records.   7. Nothing in this article shall require the disclosure  of  the  home address  of  an officer or employee, former officer or employee, or of a retiree of a public employees' retirement system; nor shall anything  in this  article  require  the  disclosure of the name or home address of a beneficiary of a public employees' retirement system or of an  applicant for  appointment to public employment; provided however, that nothing in this subdivision shall  limit  or  abridge  the  right  of  an  employee organization,  certified  or  recognized  for any collective negotiating unit of an employer pursuant to article fourteen of  the  civil  service law,  to  obtain  the  name  or home address of any officer, employee or retiree of such employer, if such name  or  home  address  is  otherwise available under this article.    8.  Any  person who, with intent to prevent the public inspection of a record pursuant to this article, willfully conceals or destroys any such record shall be guilty of a violation.   9. When records maintained electronically include items of information that  would  be  available  under  this  article,  as  well  as items of information that may be withheld, an agency in designing its information retrieval methods, whenever practicable and reasonable, shall do so in a manner that permits the segregation and retrieval of available items  in order to provide maximum public access.