2006 New York Code - 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; and
    v.  report  on  its activities and findings regarding articles six and
  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 commercial 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; or
    v.  disclosure  of  information  of  a  personal  nature  reported  in
  confidence to an agency and not relevant to the ordinary  work  of  such
  agency; or
    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.
    (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.
    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.
    3.  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. 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.
    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 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, provided,
  that  such  attorney's  fees  and litigation costs may be recovered only
  where the court finds that:
    i. the record involved was, in fact, of clearly  significant  interest
  to the general public; and
    ii.  the  agency  lacked a reasonable basis in law for withholding the
  record.
    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) 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.
    (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.