What's happening
This bill amends the Freedom of Information Law to require specific justifications for record denials and clarifies access to certain law enforcement and victim-identifying records.
Why it matters
Raises the standard for denying access to public records. Agencies must now provide a "particularized and specific justification" for withholding records, meaning vague or blanket denials are no longer sufficient. This could make it easier for individuals and journalists to challenge FOIL denials and obtain government information.
Adds judicial oversight for law enforcement record denials tied to judicial proceedings. When agencies wish to withhold records because disclosure might interfere with a pending court case, the agency must notify the judge and requester. The judge then decides, after hearing from the requester, whether the records should be withheld. This introduces an independent check and could increase transparency and accountability in high-profile or sensitive cases.
Clarifies that FOIL denials do not override other legal rights to records. The bill makes clear that if someone is entitled to records under other laws (like discovery rules in litigation), a FOIL denial cannot be used to block access. This could prevent agencies from using FOIL as a means to limit access in court cases.
Strengthens privacy protections for victims of certain crimes. The bill reaffirms and clarifies that any portion of public records that could identify victims of sex offenses or certain communicable diseases must remain confidential, reinforcing privacy safeguards for vulnerable individuals.
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Who cares
Headline styles
Strengthen Public Records Access
Plain English, a few words. Used as the page title.
Sponsors
Senator · Senate District 39
No co-sponsors yet.
History
- Substituted by A3939
- Advanced to third reading
- 2nd report cal.
- 1st report cal.654
- Referred to investigations and government operations
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
Require Justification for Record Denial
Vetoed · Sponsor Steven Englebright
Full text
2 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
5496
2019-2020 Regular Sessions
IN SENATE
May 3, 2019
Introduced by Sen. SKOUFIS -- read twice and ordered printed, and when printed to be committed to the Committee on Investigations and Government Operations
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 Assembly, do enact as follows:
Section 1. Section 87 of the public officers law is amended by adding a new subdivision 6 to read as follows:
6. When a request is made for agency records and the agency receiving such request is considering denying access pursuant to subparagraph i of paragraph (e) of subdivision two of this section on the grounds that disclosure would interfere with a judicial proceeding, the agency receiving such request shall promptly notify, in writing, the judge before whom such judicial proceeding is pending and the person making the request. Such judge shall notify the person requesting the record of its receipt, and offer the person requesting the record a reasonable opportunity to be heard. After due deliberation, such judge shall determine whether access to such records should be denied pursuant to subparagraph i of paragraph (e) of subdivision two of this section and shall submit such determination in writing to the agency and the person requesting the record. The agency shall then proceed as required pursuant to this article, in accordance with the court's determination.
§ 2. Subdivision 6 of section 89 of the public officers law, as added by chapter 933 of the laws of 1977 and as renumbered by chapter 890 of the laws of 1981, is amended and a new subdivision 10 is added to read as follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07144-01-9
S. 5496 2
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.
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.
§ 3. The opening paragraph and paragraph (e) of subdivision 2 of section 87 of the public officers law, as added by chapter 933 of the laws of 1977, are amended to read as follows:
Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except those records or portions thereof that may be withheld pursuant to the exceptions of rights of access appearing in this subdivision. A denial of access shall not be based solely on the category or type of such record and shall be valid only when there is a particularized and specific justification for such denial. Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that:
(e) are [compiled] prepared or created for law enforcement purposes [and which, if disclosed, would] only to the extent that disclosure would:
i. interfere with law enforcement investigations or judicial proceedings, provided however, that any agency considering denying access pursuant to this subparagraph shall proceed in accordance with subdivision six of this section;
ii. deprive a person of a right to a fair trial or impartial adjudication;
iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or
iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures;
§ 4. Subdivision 1 of section 50-b of the civil rights law, as amended by chapter 320 of the laws of 2006, is amended to read as follows:
1. The identity of any victim of a sex offense, as defined in article one hundred thirty or section 255.25, 255.26 or 255.27 of the penal law, or of an offense involving the alleged transmission of the human immunodeficiency virus, shall be confidential. No portion of any report, paper, picture, photograph, court file or other documents, in the custody or possession of any public officer or employee, which identifies such a victim shall be made available for public inspection. No such public officer or employee shall disclose any portion of any police report, court file, or other document, which tends to identify such a victim except as provided in subdivision two of this section.
§ 5. This act shall take effect immediately.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
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
Purpose
The purpose of this legislation is to clarify certain provisions of FOIL and other disclosure laws to make sure that people are not wrongfully denied access to public records.
Summary of provisions
This bill would make changes to the Freedom of Information Law (FOIL) and to section 50-b of the civil rights law. This bill would provide that when an agency is considering denying access to records under the law enforcement exception to FOIL on the grounds that disclosure would interfere with a judicial proceeding, then the decision of whether to grant access would be made by the judge presiding over that judicial proceeding. This bill would clarify that a denial of access to records under FOIL does not prevent a person from obtaining records under any other law. In addition, the bill would clarify that parties to any civil or criminal action or proceeding can use FOIL to obtain records concern- ing the action or proceeding. Furthermore, this bill clarifies that access to a record cannot be withheld due to the type or category of record. This bill would also amend the law enforcement exception to FOIL to make clear that records cannot be withheld solely because they relate in some manner to an investigation or criminal proceeding. This bill would also amend section 50-b of the civil rights law to clarify that only the portions of a report that would identify a victim of a sexual offense are exempt from disclosure.
Justification
FOIL provides individuals with greater access to their government which helps achieve the goal of an open and transparent government. To that end, there is a strong presumption under FOIL that government records are accessible to the public and there are a number of defined exceptions of access to records. Under current law, access to records or to portions of records is sometimes withheld when they should not be. Too often records that were prepared in the ordinary course of business, which should be accessible to the public, have been withheld. This bill would clarify certain provisions of FOIL and section 50-b of the civil rights law to make sure that people are not wrongfully denied access to public records.
Legislative history
2011-12 A9460 referred to investigations and government operations 2013-14 A5170 referred to investigations and government operations 2015-16 A4468 referred to investigations and government operations 2017-18 A3463 referred to investigations and government operations
Fiscal implications
None to the State.
Effective date
This act shall take effect immediately.
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