Strengthen Government Transparency Rules

Section 1. This act shall be known and may be cited as the "integrity in government act".

§ 2. Paragraph (a) of subdivision 1 of section 89 of the public officers law, as amended by chapter 33 of the laws of 1984, is amended and six new paragraphs (c), (d), (e), (f), (g) and (h) are added to read as follows:

(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

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD06671-01-9

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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. The executive director of the committee shall maintain a permanent office in Albany in such suitable space as the commissioner of the department of state provides. All papers required to be filed with or served upon the committee shall be delivered to such office. Each member shall receive two hundred dollars per day for each day such member is present at a committee hearing or meeting, and shall be entitled to reimbursement for actual and necessary expenses incurred in connection therewith.

(c) The committee shall, subject to the civil service law, employ such employees as may be necessary to carry out the provisions of this section. The committee may enter into such contractual agreements as may be necessary for the discharge of its duties, within the limits of its appropriated funds and in accordance with established procedures.

(d) i. Any person denied the right to inspect or copy records, denied the right to attend any meeting of a public agency or denied any other right conferred by this article and article seven of this chapter may appeal therefrom to the committee by filing a notice of appeal with the committee. A notice of appeal shall be filed not later than thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed not later than thirty days after the person filing the appeal receives notice in fact that such meeting was held. For purposes of this paragraph, such notice of appeal shall be deemed to be filed on the date it is received by said committee or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken.

ii. Upon receipt of such notice, the committee shall serve upon all parties, by certified or registered mail, a copy of such notice together with any other notice or order of such committee. In the case of the denial of a request to inspect or copy records contained in a public employee's personnel or medical file, the committee shall include with its notice or order an order requiring the public agency to notify any employee whose records are subject of an appeal, and the employee's collective bargaining representative, if any, of the committee's proceedings and, if any such employee or collective bargaining representative has filed an objection, the agency shall provide the required notice to such employee and collective bargaining representative by certified mail, return receipt requested or by hand delivery with a signed receipt. A public employee whose personnel or medical file is the subject of an appeal may intervene as a party in the proceedings on the matter before the committee.

(e) i. The committee shall, after due notice to the parties and subject to the provisions of this article and article seven of this chapter, promptly review the alleged violation of said articles. The committee shall have the power to investigate all alleged violations of this article and article seven of this chapter and may for the purpose of investigating any violation hold a hearing, administer oaths, examine witnesses, receive oral and documentary evidence, have the power to subpoena witnesses under procedural rules adopted by the committee to compel attendance and to require the production for examination of any

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books and papers which the committee deems relevant in any matter under investigation or in question. In case of a refusal to comply with any such subpoena or to testify with respect to any matter upon which that person may be lawfully interrogated, a court of competent jurisdiction, on application of the committee, may issue an order requiring such person to comply with such subpoena and to testify; failure to obey any such order of the court may be punished by the court as a contempt thereof.

ii. The committee shall hear and decide each appeal within six months after the filing of the notice of appeal. The committee shall adopt regulations establishing criteria for those appeals which shall be privileged in their assignment for hearing. Any such privileged appeal shall be heard not later than thirty days after receipt of a notice of appeal and decided not later than sixty days after a hearing.

iii. If a notice of appeal concerns an announced agency decision to meet in executive session or an ongoing agency practice of meeting in executive sessions, for a stated purpose, the committee or a member or members of the committee designated by its chairperson shall serve notice upon the parties and hold a preliminary hearing on the appeal not later than seventy-two hours after receipt of the notice, provided such notice shall be given to the parties at least forty-eight hours prior to such hearing. During such preliminary hearing, the committee shall take evidence and receive testimony from the parties. If after the preliminary hearing the committee finds probable cause to believe that the agency decision or practice is in violation of article seven of this chapter, the agency shall not meet in executive session for such purpose until the committee decides the appeal. If probable cause is found by the committee, it shall conduct a final hearing on the appeal and render its decision not later than five days after the completion of the preliminary hearing. Such decision shall specify the committee's findings of fact and conclusions of law.

iv. The committee, at its discretion, may issue an order to discontinue all work resulting from an alleged violation of this article and article seven of this chapter if irreparable harm is deemed to potentially occur. This order will hold until a decision is rendered by the committee on the alleged violation.

(f) i. In any appeal to the committee, the committee may confirm the action of the agency or order the agency to provide relief that the committee, in its discretion, believes appropriate to rectify the denial of any right conferred by this article and article seven of this chapter. The committee may declare null and void any action taken at any meeting which a person was denied the right to attend and may require the production or copying of any public record. In addition, upon finding that a denial of any right created by this article and article seven of this chapter was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with article seven of this chapter the committee may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

ii. If the committee finds that a person has taken an appeal frivolously, without reasonable grounds, after such person has been given an opportunity to be heard at a hearing conducted in accordance with article seven of this chapter, the committee may, in its discretion, impose against that person a civil penalty of not less than twenty dollars nor more than one thousand dollars.

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iii. The committee shall notify a person of a penalty levied against him pursuant to this subdivision by written notice sent by certified or registered mail. If a person fails to pay the penalty within thirty days of receiving such notice, a court of competent jurisdiction shall, on application of the committee, issue an order requiring the person to pay the penalty imposed.

iv. The committee shall provide due notice to the parties and review affidavits and written arguments that the parties may submit and grant or deny such leave summarily at its next regular meeting. The committee shall grant such leave unless it finds that the appeal: (A) does not present a claim within the committee's jurisdiction; (B) would perpetrate an injustice; or (C) would constitute an abuse of the committee's administrative process. Any party aggrieved by the committee's denial of such leave may apply to a court of competent jurisdiction, within fifteen days of the committee meeting at which such leave was denied, for an order requiring the committee to hear such appeal.

v. In making the findings and determination, the committee shall consider the nature of any justice or abuse of administrative process, including but not limited to: (A) the nature, content, language or subject matter of the request or the appeal; (B) the nature, content, language or subject matter to prior or contemporaneous requests or appeals by the person making the request or taking the appeal; and (C) the nature, content, language or subject matter of other verbal and written communications to any agency or any official of any agency from the person making the request or taking the appeal.

vi. Notwithstanding any provision of this section to the contrary, in the case of an appeal to the committee of a denial by a public agency, the committee may, upon motion of such agency, confirm the action of the agency and dismiss the appeal without a hearing if it finds, after examining the notice of appeal and construing all allegations most favorably to the appellant, that (A) the agency has not violated this article and article seven of this chapter or (B) the agency has committed a technical violation that constitutes a harmless error that does not infringe the appellant's rights.

(g) i. If in the judgment of the committee circumstances so warrant, it may at any time after the filing of a notice of appeal endeavor to resolve the appeal by any method of dispute resolution prescribed by rule of the committee including, but not limited to, mediation.

ii. The terms of any mediation agreement may contain such provisions as may be agreed upon by the committee, the appellant and the respondent.

iii. The members of the committee and its staff shall not publicly disclose what transpired in the course of mediation efforts.

iv. If a mediation agreement is entered into, the committee shall embody such agreement in an order and serve a copy of such order upon all parties to the agreement. Violation of such an order may cause the imposition of civil penalties.

(h) Any party aggrieved by the decision of said committee may appeal to the judiciary therefrom, the court may conduct an in camera review of the original or a certified copy of the records which are at issue in the appeal but were not included in the record of the committee's proceedings, admit the records into evidence and order the records to be sealed or inspected on such terms as the court deems fair and appropriate, during the appeal. The committee shall have standing to defend, prosecute or otherwise participate in any appeal of any of its decisions and to take an appeal from any judicial decision overturning or modify-

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