 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          3939
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 31, 2019
                                       ___________
 
        Introduced  by  M.  of  A.  ENGLEBRIGHT,  GLICK,  GALEF, PEOPLES-STOKES,
          L. ROSENTHAL, ABINANTI, SEAWRIGHT -- Multi-Sponsored by --  M.  of  A.
          PERRY -- read once and referred to the Committee on Governmental Oper-
          ations
 
        AN  ACT  to  amend  the  public officers law, in relation to requiring a
          particularized and specific justification  for  denial  of  access  to
          records  under  the  freedom  of  information  law  and exemption from
          disclosure under  the  freedom  of  information  law  of  certain  law
          enforcement  related  records;  and  to amend the civil rights law, in
          relation to records identifying victims
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1. Section 87 of the public officers law is amended by adding
     2  a new subdivision 6 to read as follows:
     3    6. When a request is made for agency records and the agency  receiving
     4  such request is considering denying access pursuant to subparagraph i of
     5  paragraph  (e)  of  subdivision  two of this section on the grounds that
     6  disclosure would  interfere  with  a  judicial  proceeding,  the  agency
     7  receiving  such  request  shall  promptly  notify, in writing, the judge
     8  before whom such judicial proceeding is pending and  the  person  making
     9  the request. Such judge shall notify the person requesting the record of
    10  its  receipt,  and  offer  the person requesting the record a reasonable
    11  opportunity to be heard. After due deliberation, such judge shall deter-
    12  mine whether access to such records should be denied pursuant to subpar-
    13  agraph i of paragraph (e) of subdivision two of this section  and  shall
    14  submit  such  determination  in  writing  to  the  agency and the person
    15  requesting the record.  The agency shall then proceed as required pursu-
    16  ant to this article, in accordance with the court's determination.
    17    § 2. Subdivision 6 of section 89 of the public officers law, as  added
    18  by  chapter  933 of the laws of 1977 and as renumbered by chapter 890 of
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07144-01-9

        A. 3939                             2
 
     1  the laws of 1981, is amended and a new subdivision 10 is added  to  read
     2  as follows:
     3    6.  Nothing in this article shall be construed to limit or abridge any
     4  otherwise available right of access at law or in equity of any party  to
     5  records.  A  denial of access to records or to portions thereof pursuant
     6  to this article shall not limit or abridge any party's right  of  access
     7  to such records pursuant to the civil practice law and rules, the crimi-
     8  nal procedure law, or any other law.
     9    10.  Nothing  in  this article shall be construed to limit a person or
    10  entity that is a party to any civil or  criminal  action  or  proceeding
    11  from gaining access to records pursuant to this article relating to such
    12  action  or  proceeding, provided, however, that nothing in this subdivi-
    13  sion shall prevent the denial of access  to  such  records  or  portions
    14  thereof  after  providing particularized and specific justification that
    15  such records may be withheld pursuant to this article.
    16    § 3. The opening paragraph and  paragraph  (e)  of  subdivision  2  of
    17  section  87  of  the public officers law, as added by chapter 933 of the
    18  laws of 1977, are amended to read as follows:
    19    Each agency shall, in accordance with its published rules, make avail-
    20  able for public inspection and copying all records, except those records
    21  or portions thereof that may be withheld pursuant to the  exceptions  of
    22  rights of access appearing in this subdivision. A denial of access shall
    23  not  be based solely on the category or type of such record and shall be
    24  valid only when there is a particularized and specific justification for
    25  such denial. Each agency shall, in accordance with its published  rules,
    26  make  available  for  public  inspection and copying all records, except
    27  that such agency may deny access to records or portions thereof that:
    28    (e) are [compiled] prepared or created for  law  enforcement  purposes
    29  [and  which,  if  disclosed,  would]  only to the extent that disclosure
    30  would:
    31    i.  interfere  with  law  enforcement   investigations   or   judicial
    32  proceedings,  provided  however,  that  any  agency  considering denying
    33  access pursuant to this subparagraph shall proceed  in  accordance  with
    34  subdivision six of this section;
    35    ii.  deprive  a person of a right to a fair trial or impartial adjudi-
    36  cation;
    37    iii. identify a confidential source or disclose confidential  informa-
    38  tion relating to a criminal investigation; or
    39    iv.  reveal  criminal  investigative  techniques or procedures, except
    40  routine techniques and procedures;
    41    § 4. Subdivision 1 of section 50-b of the civil rights law, as amended
    42  by chapter 320 of the laws of 2006, is amended to read as follows:
    43    1. The identity of any victim of a sex offense, as defined in  article
    44  one hundred thirty or section 255.25, 255.26 or 255.27 of the penal law,
    45  or of an offense involving the alleged transmission of the human immuno-
    46  deficiency  virus,  shall  be  confidential.  No  portion of any report,
    47  paper, picture, photograph, court file or other documents, in the custo-
    48  dy or possession of any public officer  or  employee,  which  identifies
    49  such  a  victim  shall  be made available for public inspection. No such
    50  public officer or employee shall disclose  any  portion  of  any  police
    51  report,  court  file,  or other document, which tends to identify such a
    52  victim except as provided in subdivision two of this section.
    53    § 5. This act shall take effect immediately.
Relates to access to certain records

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