N.Y. Public Officers 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.