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§ 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; and
v. report on its activities and findings regarding articles six and
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 commercial 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.

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. 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. 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.

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, provided,
that such attorney's fees and litigation costs may be recovered only
where the court finds that:
i. the record involved was, in fact, of clearly significant interest
to the general public; and
ii. the agency lacked a reasonable basis in law for withholding the
record.

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.

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