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.