2012 New York Consolidated Laws
PBO - Public Officers
Article 6 - (84 - 90) FREEDOM OF INFORMATION LAW
89 - General provisions relating to access to records; certain cases.


NY Pub Off L § 89 (2012) What's This?
 
    § 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; or
    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.
    (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.
    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.
    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, when:
    i. the agency had no reasonable basis for denying access; or
    ii.  the  agency  failed  to respond to a request or appeal within the
  statutory time.
    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.
    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.

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