2023 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. A denial of access to records or to portions  thereof  pursuant
to  this  article shall not limit or abridge any party's right of access
to such records pursuant to  the  civil  practice  law  and  rules,  the
criminal procedure law, or any other law.
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  retirement  system of the state, as such term is
defined in subdivision twenty-three of section five hundred one  of  the
retirement  and  social security law; nor shall anything in this article
require the disclosure of the name or home address of a beneficiary of a
public retirement system of the  state,  as  such  term  is  defined  in
subdivision  twenty-three  of section five hundred one of the retirement
and social security law, 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.
10. Nothing in this article shall be construed to limit  a  person  or
entity  that  is  a  party to any civil or criminal action or proceeding
from gaining access to records pursuant to this article relating to such
action  or  proceeding,  provided,  however,  that   nothing   in   this
subdivision  shall  prevent  the  denial  of  access  to such records or
portions   thereof   after   providing   particularized   and   specific
justification  that  such  records  may  be  withheld  pursuant  to this
article.