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New York Adopts Law to Guarantee
Public Access to Scientific Data
Used by State Regulatory Agencies

On December 21, 1999, New York Governor George E. Pataki signed into law significant new legislation guaranteeing the public access to the scientific data state agencies have employed to issue new rules and regulations. Chapter 647 of the Laws of 1999 provides that if a study has served as the basis of an agency-issued rule, agency must publish the following information in the State Register:

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  1. A descriptive title or other description of such study;
  2. Identity of the person who performed such study;
  3. An abstract of such study not to exceed 500 words, and
  4. Name, address and telephone number of the agency's "Data Access Officer.
Beyond that, the agency must make the study in question available for review to the public for inspection and copying. Additionally, if the study is based upon data that is readily available, the agency must make that additional data available for such review and copying.

Exemptions:

A specific exemption from the requirements is provided for emergency rule adoptions. An agency also may deny access to studies or data, or portions of such studies or data according to the provisions of Public Officer Law 87(2) pertaining to Freedom of Information Law requests. That section, permits an agency to deny access when, among other reasons, the material requested is:

  1. Specifically exempted from disclosure by state or federal statute;
  2. Concerns trade secrets or is information maintained for the regulation of a commercial enterprise which if disclosed would cause substantial injury to the competitive position of the subject enterprise, or
  3. Of such nature that it, if disclosed, would constitute an unwarranted invasion of personal privacy.


Specific Statutory Language

LAWS OF NEW YORK, 1999

CHAPTER 647

AN ACT to amend the state administrative procedure act, in relation to access to data became a law December 21, 1999, with the approval of the Governor. Passed by a majority vote, three-fifths being present.

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1. Section 102 of the state administrative procedure act is amended by adding two new subdivisions 12 and 13 to read as follows:

  1. "STUDY" MEANS ANY SCIENTIFIC OR STATISTICAL STUDY, REPORT OR ANALYSIS WHICH CONTAINS CONCLUSIONS DRAWN FROM SCIENTIFIC, STATISTICAL OR SIMILAR FORMS OF ANALYSIS.

  2. "DATA" MEANS ANY WRITTEN INFORMATION OR MATERIAL, INCLUDING, BUT NOT LIMITED TO STATISTICS OR MEASUREMENTS, COMPILED BY RESEARCHERS AND USED AS THE BASIS FOR THE REASONING, CALCULATIONS OR CONCLUSIONS IN OR ARISING FROM A STUDY.

Section 2. The state administrative procedure act is amended by adding a new section 104 to read as follows:

S 104. ACCESS TO STUDIES AND DATA.

1. WHEN AN AGENCY PROPOSES TO PROMULGATE, REPEAL OR AMEND A RULE, REGULATION OR GUIDELINE WHICH AN AGENCY USES IN ENFORCEMENT OF A STATUTE, RULE OR REGULATION, AND WHERE A STUDY HAS SERVED AS THE BASIS FOR THE PROMULGATION, AMENDMENT OR REPEAL OF SUCH RULE, REGULATION OR GUIDELINE, THE AGENCY SHALL PUBLISH IN THE STATE REGISTER A DESCRIPTIVE TITLE OR OTHER DESCRIPTION OF ANY SUCH STUDY AS WELL AS THE IDENTITY OF THE PERSON WHO PERFORMED SUCH STUDY AND AN ABSTRACT OF SUCH STUDY WHICH SHALL NOT EXCEED FIVE HUNDRED WORDS, AND THE NAME, ADDRESS AND TELEPHONE NUMBER OF THE DATA ACCESS OFFICER. THE AGENCY SHALL MAKE ANY SUCH STUDY AVAILABLE IN THE AGENCY`S PUBLIC REFERENCE ROOM OR OTHER LOCATION AT WHICH MEMBERS OF THE PUBLIC MAY HAVE CONVENIENT ACCESS TO AGENCY RECORDS FOR INSPECTION AND COPYING. IF THE STUDY IS PERFORMED BY THE AGENCY OR BY A PERSON OR ENTITY THAT CONTRACTED WITH THE AGENCY FOR THE PERFORMANCE OF THE STUDY, AND IF THE UNDERLYING DATA UTILIZED IN THE STUDY IS READILY AVAILABLE, THE AGENCY SHALL ALSO MAKE THE UNDERLYING DATA UTILIZED IN THE STUDY AVAILABLE IN THE AGENCY`S PUBLIC REFERENCE ROOM OR OTHER LOCATION AT WHICH MEMBERS OF THE PUBLIC MAY HAVE CONVENIENT ACCESS TO AGENCY RECORDS FOR INSPECTION AND COPYING. IF SUCH INFORMATION IS NOT MADE AVAILABLE TO THE PUBLIC AND THE AGENCY FAILS TO PRODUCE SUCH INFORMATION WITHIN THIRTY DAYS OF RECEIPT OF A WRITTEN REQUEST OF ANY PERSON FOR SUCH INFORMATION, THE PERSON MAKING THE REQUEST MAY FILE AN ACTION IN COURT PURSUANT TO ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES TO COMPEL THE PRODUCTION OF THE REQUESTED MATERIAL. NOTHING IN THIS SECTION SHALL BE DEEMED TO APPLY TO A RULE OR REGULATION PROMULGATED ON AN EMERGENCY BASIS.

2. WHEN AN AGENCY CONTRACTS WITH A PERSON OR ENTITY FOR THE PERFORMANCE OF A STUDY OR AWARDS A GRANT FOR SUCH PURPOSE, THE AGENCY SHALL REQUIRE AS A CONDITION OR TERM OF SUCH CONTRACT OR GRANT THAT THE PERSON OR ENTITY SHALL PROVIDE TO THE AGENCY THE STUDY AND ANY DATA UNDERLYING THE STUDY, AND THE IDENTITY OF THE PRINCIPAL PERSON OR PERSONS WHO PERFORMED SUCH STUDY FOR DISCLOSURE IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION.

3. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISIONS ONE AND TWO OF THIS SECTION, AN AGENCY MAY DENY ACCESS TO STUDIES OR DATA, OR PORTIONS THEREOF, ACCORDING TO THE PROVISIONS OF SUBDIVISION TWO OF SECTION EIGHTY-SEVEN OF THE PUBLIC OFFICERS LAW. ANY DOCUMENT SHALL BE PROVIDED TO THE PERSON REQUESTING SUCH REPORT OR DATA AFTER THE AGENCY HAS REDACTED THE PORTIONS WHICH ARE EXEMPT UNDER THIS SUBDIVISION. THE NAMES OF PERSONS WHO AUTHORED OR PERFORMED A STUDY ARE NOT EXEMPT FROM DISCLOSURE. A PERSON OR ENTITY THAT PERFORMED A STUDY ON OR BEHALF OF AN AGENCY MAY, HOWEVER, SUBMIT A REQUEST TO EXEMPT ALL OR PORTIONS OF SUCH STUDY FROM DISCLOSURE PURSUANT TO THE PROVISIONS OF SUBDIVISION FIVE OF SECTION EIGHTY-NINE OF THE PUBLIC OFFICERS LAW.

4. EACH AGENCY SHALL DESIGNATE ONE EMPLOYEE AS ITS DATA ACCESS OFFICER FOR PURPOSES OF COMPLIANCE WITH THE PROVISIONS OF THIS SECTION. SUCH DATA ACCESS OFFICER MAY BE, BUT IS NOT REQUIRED TO BE, THE SAME EMPLOYEE WHO IS THE DESIGNATED RECORDS ACCESS OFFICER OF THE AGENCY UNDER ARTICLE SIX OF THE PUBLIC OFFICERS LAW.

5. NOTWITHSTANDING ANY PROVISION OF ANY LAW TO THE CONTRARY, THE AGENCY SHALL BE ENTITLED TO RECEIVE THE SAME FEES FOR COPIES OF STUDIES OR DATA RELEASED PURSUANT TO THIS SECTION AS IT WOULD BE ENTITLED TO RECEIVE UNDER ARTICLE SIX OF THE PUBLIC OFFICERS LAW.

6. EACH AGENCY SHALL ISSUE GUIDELINES AS TO PROCEDURES WHICH MEMBERS OF THE PUBLIC MUST FOLLOW IN SUBMITTING REQUESTS FOR STUDIES OR DATA UNDER THIS SECTION. SUCH GUIDELINES SHALL BE ISSUED WITHIN ONE HUNDRED TWENTY DAYS AFTER THE EFFECTIVE DATE OF THIS SECTION AND SHALL BE MADE AVAILABLE TO THE PUBLIC BY EACH AGENCY.

7. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO AFFECT THE PROVISIONS OF SUBDIVISION TWO OF SECTION ONE HUNDRED TWO OF THIS ARTICLE.

Section 3. This act shall take effect 180 days after it shall have become a law and shall apply to all rules, regulations and guidelines used in enforcement of a statute, rule or regulation which is promulgated, repealed or amended on or after such effective date.

The Legislature of the STATE OF NEW YORK SS:

Pursuant to the authority vested in us by section 70-b of the Public Officers Law, we hereby jointly certify that this slip copy of this session law was printed under our direction and, in accordance with such section, is entitled to be read into evidence.

JOSEPH L. BRUNO SHELDON SILVER

TEMPORARY PRESIDENT OF THE SENATE
SPEAKER OF THE ASSEMBLY