Section 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; 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 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.
    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.