NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A414A
SPONSOR: Paulin (MS) TITLE OF BILL: An act to amend the public officers law and the civil
practice law and rules, in relation to preference given to an appeal to
the appellate division of the supreme court regarding a denial of an
exception from disclosure
PURPOSE OR GENERAL IDEA OF BILL::
To require that a proceeding to stop disclosure of a record be given
preference by the courts and heard in an expedited manner.
SUMMARY OF SPECIFIC PROVISIONS::
Section one amends subdivision five of section eighty-nine of the public
officers law to provide that a proceeding commenced to review an adverse
determination pursuant to paragraph (c) of section eighty-nine shall be
given preference and shall be brought on for argument on such terms and
conditions as the presiding justice may direct, not to exceed forty-five
days.
This section also provides that an appeal to the appellate division of
the supreme court must be made in accordance with subdivision (a) of
section fifty-five hundred thirteen of the civil practice law and rules.
An appeal taken from an order of the court requiring disclosure shall be
given preference and shall be brought on for argument on such terms and
conditions as the presiding justice may direct, upon application by any
party to the proceeding. This action shall be deemed abandoned when the
party requesting an exclusion from disclosure fails to serve and file a
record and brief within sixty days after the date of the notice of
appeal, unless consent of further extension is given by all parties, or
unless further extension is granted by the court upon such terms as may
be just and upon good cause shown.
Second two amends subdivision b of rule 5521 of the civil practice law
and rules to give preference to a proceeding to review an adverse deter-
mination, pursuant to paragraph (d) of subdivision five of section
eighty nine of the public officers law.
Section three provides the effective date.
JUSTIFICATION::
Subdivision five of section eighty-nine of the Freedom of Information
Law relates to disclosures that would cause substantial injury to the
competitive position of a commercial enterprise. This is the only
grounds upon which a person or entity may initiate a judicial proceeding
to prevent the government from disclosing records to the public. The
government will then be required to expend time and money to defend its
position that the record should be disclosed, a cost which is passed
along to taxpayers.
Unlike proceedings initiated by individuals who have been denied access
to requested records, this is a situation in which a person or entity is
seeking to block records from being released when the agency believes
the records must be disclosed. Often, commercial enterprises initiate
these proceedings to cause delays and prevent the release of records
that could affect a business deal or other action. Ensuring that these
proceedings are brought on for argument in an expedited manner will
prevent the use of these challenges as a delay tactic.
PRIOR LEGISLATIVE HISTORY::
2018: A.2879 Passed Assembly / S. 2817 Referred to Rules
2017: A.2879 Referred to Rules / S.2817 Referred to Investigations and
Government Operations
2016: A.327-A Referred to Governmental Operations / S.3390-A Referred to
Investigations and Government Operations
2015: A.327 Referred to Governmental Operations / S.3390 Referred to
Investigations and Government Operations
2014: A.2057-A Referred to Codes / S.7570 Referred to Investigations and
Government Operations
2013: A.2057 Referred to Governmental Operations
2012: A.6996 Referred to Governmental Operations / S.4754 Referred to
Investigations and Government Operations
2011: A.6996 Referred to Governmental Operations / S.4754 S.4754
Referred to Investigations and Government Operations
FISCAL IMPLICATIONS::
None
EFFECTIVE DATE::
This act shall take effect on the one hundred eightieth day after it
shall have become a law and shall apply to appeals for which notice of
appeal was filed on or after such date.
STATE OF NEW YORK
________________________________________________________________________
414--A
2019-2020 Regular Sessions
IN ASSEMBLY(Prefiled)
January 9, 2019
___________
Introduced by M. of A. PAULIN, GALEF, WEPRIN -- Multi-Sponsored by -- M.
of A. LUPARDO, THIELE -- read once and referred to the Committee on
Governmental Operations -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the public officers law and the civil practice law and
rules, in relation to preference given to an appeal to the appellate
division of the supreme court regarding a denial of an exception from
disclosure
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (d) of subdivision 5 of section 89 of the public
2 officers law, as amended by chapter 339 of the laws of 2004, is amended
3 to read as follows:
4 (d) (i) A proceeding to review an adverse determination pursuant to
5 paragraph (c) of this subdivision may be commenced pursuant to article
6 seventy-eight of the civil practice law and rules. Such proceeding, when
7 brought by a person seeking an exception from disclosure pursuant to
8 this subdivision, must be commenced within fifteen days of the service
9 of the written notice containing the adverse determination provided for
10 in subparagraph two of paragraph (c) of this subdivision. The proceeding
11 shall be given preference and shall be brought on for argument on such
12 terms and conditions as the presiding justice may direct, not to exceed
13 forty-five days.
14 (ii) Appeal to the appellate division of the supreme court must be
15 made in accordance with subdivision (a) of section fifty-five hundred
16 thirteen of the civil practice law and rules.
17 (iii) An appeal taken from an order of the court requiring disclosure:
18 (A) shall be given preference; and
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00605-03-9
A. 414--A 2
1 (B) shall be brought on for argument on such terms and conditions as
2 the presiding justice may direct, upon application by any party to the
3 proceeding; and
4 (C) shall be deemed abandoned when the party requesting an exclusion
5 from disclosure fails to serve and file a record and brief within sixty
6 days after the date of the notice of appeal, unless consent of further
7 extension is given by all parties, or unless further extension is grant-
8 ed by the court upon such terms as may be just and upon good cause
9 shown.
10 § 2. Subdivision (b) of rule 5521 of the civil practice law and rules,
11 as amended by chapter 487 of the laws of 2016, is amended to read as
12 follows:
13 (b) Consistent with the provisions of section one thousand one hundred
14 twelve of the family court act, appeals from orders, judgments or
15 decrees in proceedings brought pursuant to articles three, seven, ten
16 and ten-A and parts one and two of article six of the family court act,
17 and pursuant to sections three hundred fifty-eight-a, three hundred
18 eighty-three-c, three hundred eighty-four, and three hundred eighty-
19 four-b of the social services law, and pursuant to paragraph (d) of
20 subdivision four and subparagraph (ii) of paragraph (d) of subdivision
21 five of section eighty-nine of the public officers law, shall be given
22 preference and may be brought on for argument on such terms and condi-
23 tions as the court may direct without the necessity of a motion.
24 § 3. This act shall take effect on the one hundred eightieth day after
25 it shall have become a law and shall apply to appeals for which notice
26 of appeal was filed on or after such date.
