Financial Reports to Be Filed by Certain Not-for-Profit Organizations

Certain not-for-profit organizations are required to file Funding Disclosure Reports or Financial Disclosure Reports with the New York State Department of State pursuant to Article 7-A of the Executive Law.

All reports are to be filed online through the Department of State’s website. Filers will need a NY.Gov account to file a report through the Department’s Financial Reporting System. A new NY.Gov account may be created through the link found in the "To File Online" section, below.

Please review the information for each type of report and our frequently asked questions for more information.

WHO MUST REPORT: 501(c)(3) organizations required to register in New York State pursuant to Executive Law §172.

WHEN A REPORT IS REQUIRED:

When in-kind donations such as human resources, office space or office supplies are made to a 501(c)(4) organization; AND

The value of the donations exceeds $10,000 for a reporting period (the period beginning January 1 and ending June 30, or beginning July 1 and ending December 31); AND

The 501(c)(4) organization is required to file a Source of Funding Report with the Commission on Ethics in Lobbying and Government.

WHAT A REPORT INCLUDES:

All information specifically required by Exec. Law 172-e(2); AND

A copy of the Annual Financial Report(s) encompassing the entire reporting period for which the Funding Disclosure is made, or the most recent Annual Financial Report filed, including all required forms and attachments and the associated Schedule B(s).

WHEN THE REPORT MUST BE FILED:

The Funding Disclosure Report must be filed with the Department of State within 30 days of the close of a reporting period.

THE FILING FEE:

The fee for filing a Funding Disclosure Report is $25.

WHO MUST REPORT: 501(c)(4) organizations required to register in New York State pursuant to Executive Law §172.

WHEN A REPORT IS REQUIRED:

When expenditures for communications in any form are made to 500 or more members of a general public audience; AND

The communications refer to and advocate for or against an official, executive or administrative body, or legislative body relating to any legislation, rule, regulation, hearing or decision, OR advocates for or against any action by any elected official, executive or administrative body or legislative body; AND

The value of the expenditures for the covered communications exceeds $10,000 in a calendar year.

WHAT A REPORT INCLUDES:

All information specifically required by Exec. Law 172-f; and

A copy of the Annual Financial Report(s), encompassing the entire period for which the Financial Disclosure is made, or the most recent Annual Financial Report filed, including all required forms and attachments and the associated Schedule B(s).

WHEN THE REPORT MUST BE FILED:

The Financial Disclosure Report must be filed with the Department of State within 30 days of the close of the reporting period in which the $10,000 spending threshold is met.

THE FILING FEE:

The fee for filing a Financial Disclosure Report is $25.

• Link to create a new ny.gov account: https://my.ny.gov/LoginV4/login.xhtml
• File a financial report for a charitable organization with an existing NY.Gov ID

Executive Law § 172-b. Reports by registered charitable organizations; registration to be cancelled for failure to file

9. Any registered charitable organization that is required to file a funding disclosure report pursuant to section one hundred seventy-two-e of this article, and/or a financial disclosure report pursuant to section one hundred seventy-two-f of this article for a reporting period during the applicable fiscal year shall also be required to file such annual financial report, including all required forms and attachments, with the department of state.

Executive Law § 172-e. Disclosure of certain donations by charitable non-profit entities

1. Definitions. For the purposes of this section:

(a) “Covered entity” shall mean any corporation or entity that is qualified as an exempt organization or entity by the United States Department of the Treasury under I.R.C. 501(c)(3) that is required to report to the department of law pursuant to this section.

(b) “In-kind donation” shall mean donations of staff, staff time, personnel or any other human resources, offices or office supplies, except that an in-kind donation shall not include an in-kind donation made by a person or entity in the course of an activity that is substantially related to accomplishing the covered entity’s tax exempt purposes where the in-kind donator is offering or providing goods or services for substantially less than fair market value to individuals, corporations or groups, and those goods or services are actually purchased or consumed by wholly unaffiliated individuals, corporations or groups for no charge or substantially less than fair market value, and may include, but is not limited to, pro bono legal services and other forms of technical assistance.

(c) “Donation” shall mean any contribution, including a gift, loan, in-kind donation, advance or deposit of money or anything of value.

(d) “Recipient entity” shall mean any corporation or entity that is qualified as an exempt organization or entity by the United States Department of the Treasury under I.R.C. 501(c)(4) that is required to file a source of funding report with the commission on ethics and lobbying in government pursuant to sections one-h and one-j of the legislative law.

(e) “Reporting period” shall mean the six month period within a calendar year starting January first and ending June thirtieth or the six month period within a calendar year starting July first and ending December thirty-first.

2. Funding disclosure reports to be filed by covered entities.

(a) Any covered entity that makes an in-kind donation in excess of ten thousand dollars to a recipient entity during a relevant reporting period shall file a funding disclosure report with the department of state. The funding disclosure report shall include:

(i) the name and address of the covered entity that made the in-kind donation;

(ii) the name and address of the recipient entity that received or benefitted from the in-kind donation;

(iii) the names of any persons who exert operational or managerial control over the covered entity. The disclosures required by this paragraph shall include the name of at least one natural person;

(iv) the date such donation was made by the covered entity; and

(v) a description of the in-kind donation, including the charitable purpose advanced by such donation, if any, and any restrictions on the use of such donation by the recipient entity.

(b) The covered entity shall file a funding disclosure report with the department of state within thirty days of the close of a reporting period.

3. Public disclosure of funding disclosure reports. The department of state shall promulgate any regulations necessary to implement these requirements and shall publish such reports on the department’s website when authorized pursuant to subdivision two of this section; provided however that the secretary of state, or his or her designee, may determine that disclosure of all or a portion of the in-kind donations to the covered entity and financial assistance provided by any covered entity to one or more recipient entities, shall not be made public if, based upon a review of the relevant facts presented by the covered entity, such disclosure may cause harm, threats, harassment, or reprisals to the source of the donation or to individuals or property affiliated with the source of the donation. The covered entity may appeal the secretary’s determination and such appeal shall be heard by a judicial hearing officer who is independent and not affiliated with or employed by the department of state. The total amount of in-kind donations to the covered entity and financial assistance provided by any covered entity to one or more recipient entities that are the subject of such appeal shall not be made public pending final judgment on appeal.

4. If a covered entity’s or recipient entity’s annual report filed pursuant to section one hundred seventy-two-b of this article does not include a completed Internal Revenue Service Form 990 schedule B and that covered entity makes, or that recipient entity receives, qualifying donations pursuant to subdivision two of this section, that entity shall in addition to filing a disclosure with the department of law, also file with the department of state a complete Internal Revenue Service Form 990 Schedule B, regardless of whether such form is submitted or required to be submitted to the Internal Revenue Service.

Executive Law § 172-f. Disclosure of certain activities by non-charitable non-profit entities.

1. Definitions.

(a) “Covered Entity” means any corporation or entity that is qualified as an exempt organization or entity by the United States Department of the Treasury under I.R.C. 501(c)(4).

(b) “Covered communication” means a communication by a covered entity, not otherwise reported by such covered entity pursuant to article one-A of the legislative law or article fourteen of the election law, by a covered entity conveyed to five hundred or more members of a general public audience in the form of: (i) an audio or video communication via broadcast, cable or satellite; (ii) a written communication via advertisements, pamphlets, circulars, flyers, brochures, letterheads; or (iii) other published statement which: refers to and advocates for or against a clearly identified elected official, executive or administrative body or legislative body relating to the sponsorship, support, opposition, or outcome of any proposed legislation, pending legislation, rule, regulation, hearing or decision, or advocates for or against action by any elected official, executive or administrative body or legislative body.

Covered communication shall not include:

(i) communications with a professional journalist or newscaster, including an editorial board or editorial writer of a newspaper, magazine, news agency, press association or wire service, relating to news, as these terms are defined in section seventy-nine-h of the civil rights law, and communications relating to confidential and non-confidential news as described in subdivisions (b) and (c) of section seventy-nine-h of the civil rights law respectively and communications made pursuant to community outreach efforts for broadcast stations required by federal law; or

(ii) a communication that is: (A) directed, sent or distributed by the covered entity only to individuals who affirmatively consent to be members of the covered entity, contribute funds to the covered entity, or, pursuant to the covered entity’s articles or bylaws, have the right to vote directly or indirectly for the election of directors or officers, or on changes to bylaws, disposition of all or substantially all of the covered entity’s assets or the merger or dissolution of the covered entity; or (B) for the purpose of promoting or staging any candidate debate, town hall or similar forum to which at least two candidates seeking the same office, or two proponents of differing positions on a referendum or question submitted to voters, are invited as participants, and which does not promote or advance one candidate or position over another.

(c) “Expenditures for covered communications” shall mean: (i) any expenditure made, liability incurred, or contribution provided for covered communications; or (ii) any other transfer of funds, assets, services or any other thing of value to any individual, group, association, corporation whether organized for profit or not-for-profit, labor union, political committee, political action committee, or any other entity for the purpose of supporting or engaging in covered communications by the recipient or a third party.

(d) “Donation” shall mean any contribution, including in-kind, gift, loan, advance or deposit of money or anything of value made to a covered entity unless such donation is deposited into an account the funds of which are not used for making expenditures for covered communications.

(e) “Reporting period” shall mean the six month period within a calendar year starting January first and ending June thirtieth or the six month period within a calendar year starting July first and ending December thirty-first.

2. Disclosure of expenditures for covered communications.

(a) Any covered entity that makes expenditures for covered communications in an aggregate amount or fair market value exceeding ten thousand dollars in a calendar year shall file a financial disclosure report with the department of state. The financial disclosure report shall include:

(i) the name and address of the covered entity that made the expenditure for covered communications;

(ii) the name or names of any individuals who exert operational or managerial control over the covered entity. The disclosures required by this paragraph shall include the name of at least one natural person;

(iii) a detailed description of the covered communication;

(iv) the dollar amount paid for each covered communication, the name and address of the person or entity receiving the payment, and the date the payment was made; and

(v) for any restricted donation received by the covered entity in whole or in part for the support of the covered communication, the name and address of any individual, corporation, association, or group that made a donation to the covered entity and the date of such donation, and the amount of the donation, together with a description of any restriction.

(b) The covered entity shall file a financial disclosure report with the department of state within thirty days of the close of a reporting period.

3. Public disclosure of funding disclosure reports. The department of state shall promulgate any regulations necessary to implement these requirements and shall publish on the department’s website the reports of covered communications required by this section. Such publishing shall not include the names and addresses of individual donors to covered entities, nor shall such publishing include the covered entity’s Internal Revenue Service Form 990 Schedule B. Such report shall not be made public pursuant to this section if, based upon a review of the relevant facts presented by the covered entity, such disclosure may cause harm, threats, harassment, or reprisals to the source of the donation or to individuals or property affiliated with the source of the donation. The covered entity may appeal the secretary’s determination and such appeal shall be heard by a judicial hearing officer who is independent and not affiliated with or employed by the department of state, pursuant to regulations promulgated by the department of state. The reports subject to disclosure pursuant to this section that are the subject of such appeal pursuant to this section shall not be made public pending final judgment on appeal.

4. If a covered entity’s annual report filed pursuant to section one hundred seventy-two-b of this article does not include a completed Internal Revenue Service Form 990 schedule B, the entity shall in addition to filing a disclosure with the department of law, also file with the department of state a complete Internal Revenue Service Form 990 schedule B, regardless of whether such form is submitted or required to be submitted to the Internal Revenue Service.

19 NYCRR, Chapter IV, Part 146

Charitable and Non-Charitable Non-Profit Organization Filings Pursuant to Article 7-A of the Executive Law

Sec.

146.1 Definitions

146.2 Applicability; filing of reports

146.3 Annual Financial Report

146.4 Funding Disclosure Report

146.5 Financial Disclosure Report

146.6 Manner of filing; fees

146.7 Additional Information or Documentation

146.8 Examination of Reports

146.9 Administrative Hearings

146.10 Publication of Reports

146.11 Severability

146.1 Definitions

For purposes of this Part, the following terms have the following meanings:

(a) “Charitable” means, pursuant to Article 7-A of the Executive Law (Article 7-A), all purposes deemed charitable under applicable federal law, philanthropic, patriotic, eleemosynary or for law enforcement support and any other purpose included in the definition of charitable organizations in Article 7-A, and any purpose included in Not-for-Profit Corporation Law Section 102(a)(3-b).

(b) “Charitable organization” means an organization that is organized and/or operated for charitable purposes, whether or not exempt from federal income taxation, that is required to register with the Attorney General pursuant to Article 7-A of the Executive Law.

(1) The term charitable organization includes any domestic or foreign corporation, unincorporated association or other legal entity, that is organized and/or operated for charitable purposes, including without limitation:

(i) any corporation formed and/or operated for charitable purposes as defined in NPCL section 102(a)(3-b);

(ii) organizations exempt from federal income taxation pursuant to United States Internal Revenue Code (the Code) section 501(c)(3), including wholly charitable trusts; and

(iii) organizations exempt from federal income taxation pursuant to another code section that are organized and/or operated for charitable purposes.

(c) “Charitable purpose” means the statement of the charitable organization’s mission, all charitable categories identified in a filing entity’s application for recognition of exemption as a 501(c) entity, any narrative description of the filing entity’s activities provided with such application, and any supporting details to the narrative description provided with such application that is filed with the Department of State pursuant to this Part.

(d) “Filing entity” means a qualifying 501(c)(3) entity or qualifying 501(c)(4) entity required to file an annual financial report, funding disclosure report, or financial disclosure report pursuant to Article 7-A of the Executive Law.

(e) “Qualifying 501(c)(3) entity” means any corporation or entity that is qualified as an exempt organization or entity by the United States Department of the Treasury under 26 U.S.C. 501(c)(3) that is required to report to the Department of State pursuant to section 172-e of the Executive Law.

(f) “Qualifying 501(c)(4) entity” means any corporation or entity that is qualified as an exempt organization or entity by the United States Department of the Treasury under 26 U.S.C. 501(c)(4).

(g) “Disclosure-related harm” means harm, threats, harassment, or reprisals to the source of a donation or to individuals or property affiliated with the source of a donation that may stem from public disclosure of all or a portion of in-kind donations made to a qualifying 501(c)(3) entity and financial assistance provided by any qualifying 501(c)(3) entity to one or more qualifying 501(c)(4) entities.

(h) “Notice of Intent to Publish” means a document or electronic notice provided by the Secretary to a filing entity of the Secretary’s intent to publish any report filed with the Department of State pursuant to Article 7-A of the Executive Law.

(i) “Secretary” means the Secretary of State of the State of New York.

(j) “SAPA” means the State Administrative Procedure Act of the State of New York.

146.2 Applicability; filing of reports

(a) To whom this part applies.  This part applies to filing entities as defined in section 146.1 of this Part. The following sections of this Part contain the requirements applicable to filing entities’ duty to file reports with the Department of State.

(b) Filing of reports.  Filing entities must submit their financial reports to the NYS Department of State, Division of Corporations, State Records and Uniform Commercial Code in such manner as prescribed by the Secretary of State. Filing entities required to file an Annual Financial Report with the Department of State pursuant to section 172-b of the Executive Law shall file such report no later than the date such report is required to be filed with the New York State Attorney General’s Charities Bureau.

146.3 Annual Financial Report

If an Annual Financial Report delivered to the Department of State for filing complies as to form with the requirements of law and the filing fee required by law for such report has been paid, the report shall be filed by the Department of State.

146.4 Funding Disclosure Report

(a) A qualifying 501(c)(3) entity shall file, along with the entity’s Funding Disclosure Report, as required by section 172-e of the Executive Law, a statement of the qualifying 501(c)(3) entity’s mission that is consistent with what was or would be provided to the Internal Revenue Service of the United Stated Department of the Treasury with a qualifying 501(c)(3) entity’s application for recognition of exemption as a 501(c)(3), all charitable categories identified in such application, any narrative description of the qualifying 501(c)(3) entity’s activities provided with such application, any supporting details to the narrative description provided with such application, and any specific activities that were or would be identified in such application.

(b) If the qualifying 501(c)(3) entity filing a funding disclosure report has reason to believe that public disclosure will cause disclosure-related harm, the qualifying 501(c)(3) entity may submit to the Department of State a statement of relevant facts supporting such assertion.  Such statement of relevant facts shall indicate whether disclosure-related harm would stem from public disclosure of all of the in-kind donations to the qualifying 501(c)(3) entity and financial assistance provided by any the qualifying 501(c)(3) entity to one or more the qualifying 501(c)(4) entities, or only to a portion thereof.  A statement of relevant facts shall not be subject to publication or public disclosure. The qualifying 501(c)(3) entity providing such statement of relevant fact shall also provide the Department of State with an email address or other manner of receiving electronic notification acceptable to the Department of State that will serve as the means of communicating a notice of intent to publish, as provided in section 146.9 of this Part. It is the responsibility of the filing entity to provide the Department of State with any change to said email address or other approved point of contact.

(c) Certification.  Each funding disclosure report shall be signed by an officer, director or duly authorized person and include the name, address, and capacity in which such person signs such report.

(d) If a Funding Disclosure Report delivered to the Department of State for filing complies as to form with the requirements of law and the filing fee required by law for such report has been paid, the report shall be filed by the Department of State.

146.5 Financial Disclosure Report

(a) A qualifying 501(c)(4) entity shall file, along with the entity’s Financial Disclosure Report, as required by section 172-f of the Executive Law, any applicable statement of the qualifying 501(c)(4) entity’s mission, a narrative description of the qualifying 501(c)(4) entity’s activities that is consistent with what was or would be provided to the Internal Revenue Service of the United Stated Department of the Treasury with a qualifying 501(c)(4) entity’s application for recognition of exemption as a 501(c)(4), and all specific activities that were or would be provided with such application.

(b) If the qualifying 501(c)(4) entity filing a Financial Disclosure Report has reason to believe that public disclosure will cause disclosure-related harm, the qualifying 501(c)(4) entity may submit to the Department of State with the qualifying 501(c)(4)’s report a statement of relevant facts supporting such assertion.  Such statement of relevant facts shall indicate whether disclosure-related harm would stem from public disclosure of all of the in-kind donations to the qualifying 501(c)(3) entity and financial assistance provided by any the qualifying 501(c)(3) entity to one or more the qualifying 501(c)(4) entities, or only to a portion thereof.  A statement of relevant facts shall not be subject to publication or public disclosure.  The qualifying 501(c)(4) entity providing such statement of relevant fact shall also provide the Department of State with an email address or other manner of receiving electronic notification acceptable to the Department of State that will serve as the means of communicating a notice of intent to publish, as provided in section 146.9 of this Part.  It is the responsibility of the filing entity to provide the Department of State with any change to said email address or other approved point of contact.

(c) Certification.  Each Financial Disclosure Report shall be signed by an officer, director or duly authorized person and include the name, address, and capacity in which such person signs such report.

(d) If a Financial Disclosure Report delivered to the Department of State for filing complies as to form with the requirements of law and the filing fee required by law for such report has been paid, the report shall be filed by the Department of State.

146.6 Manner of filing; fees

(a) All submissions may be filed electronically. 

(b) Identification of Filings.  Identifying information, including the organization or entity name and, if applicable, the registration number assigned by the Attorney General, must be placed on all correspondence and other documents, including payments, submitted to the Department of State.

(c) Fees.  Filing entities are required to pay the filing fee required by law for each report or document delivered to the Department of State for filing under Executive Law Article 7-A.

146.7 Additional Information or Documentation

In addition to any documents a qualifying 501(c)(3) entity or qualifying 501(c)(4) entity must file with the Department of State as part of or with any report required by Article 7-A of the Executive Law, the Department of State may require a filing entity to submit any information or documentation relevant to the Secretary of State’s review of such reports as required by section 93-a of the Executive Law.

146.8 Examination of Reports

(a) Notice of Intent to Publish.  Should the Secretary of State determine that the nature and extent of a covered entity's in-kind support to other entities or the nature and extent of a covered entity's spending on covered communications is inconsistent with the charitable purposes of such covered entity, the Secretary of State shall notify the filing entity of the intent to publicly disclose all or part of any relevant report. Such Notice of Intent to Publish shall identify the report(s) for which publication is contemplated, indicate whether the filing entity failed to provide a statement of fact relating to disclosure-related harm, or that a filing entity has provided a statement of fact relating to disclosure-related harm, and that the Secretary has determined that the facts provided in such statement fail to demonstrate that public disclosure of all or any part of a report required to be filed with the Department of State pursuant to Article 7-A of the Executive Law will cause disclosure-related harm.

(b) Appeal.  If the filing entity wishes to administratively appeal the Secretary’s determination, the filing entity shall notify the Secretary of State within 30 days of the Secretary’s transmission of Notice of Intent to Publish.  Failure to provide timely notice of intent to appeal shall be deemed consent by the filing entity to publication of the subject report.

146.9 Administrative Hearings

(a) Scope of this section.  The provisions of this section shall apply only to an appeal, pursuant to sections 172-e and 172-f of the Executive Law, to an independent judicial hearing officer who is unaffiliated with the Department of State, as to whether a determination by the Secretary of State that relevant facts presented by the covered entity fail to demonstrate that disclosure of all or a portion of such report may cause disclosure-related harm, and which, in conjunction with section 93-a of the Executive Law, authorizes public disclosure of funding and financial disclosure reports.

(b) Applicability.  Administrative hearings shall be conducted in conformity with SAPA Article 3 and the provisions of this section. No provision of Part 400 of Title 19 of the New York Codes, Rules and Regulations shall be applicable to hearings conducted pursuant to this Part.

(c) Parties and appearances.

(1) Parties.  The party commencing an appeal shall be known as the appellant. The Secretary of State shall be known as the respondent. After an appeal is commenced in accordance with these rules, no party shall be joined or permitted to intervene, except by leave or direction of the administrative hearing officer.

(2) Appearances.

(i) A filing entity shall be represented through one or more officers of the filing entity or an attorney representing the entity. Any representative of a party who is other than an attorney licensed to practice in New York State shall disclose such person’s authority to make legal decisions that bind the party. All persons appearing before the administrative hearing officer shall conform to the standards of conduct required of attorneys appearing before the courts of the State of New York.  Any person signing any papers submitted in or entering an appearance in any proceeding shall be considered to have agreed to conform to those standards.  A failure to conform to those standards shall be grounds for exclusion from that and any later proceeding.  Nothing in this paragraph authorizes a non-lawyer to engage in the practice of law.

(ii) Any person appearing on behalf of a party in a representative capacity may be required by the administrative hearing officer to show and state on the record the person’s authority to act in such capacity and to file a notice of appearance with the administrative hearing officer.

(iii) If there is a change or withdrawal of a party’s attorney or authorized representative, the party shall provide notice of the change or withdrawal to the administrative hearing officer and the attorneys or authorized representatives of all other parties, or, if a party appears without an attorney or authorized representative, to the party within ten (10) days of the change or withdrawal.

(d) Institution of appeal.

 The appellant shall institute an appeal within 30-days of providing timely notice of intent to appeal to the Secretary by complying with the provisions of this section.  Failure by the appellant to institute a timely appeal as required by this paragraph shall be deemed consent by the filing entity to publication of the subject report(s).  To institute an appeal, the appellant shall:

 (1) prepare an appeal, in letter format signed by appellant or appellant's counsel, that shall include the following:

(i) name of appellant;

(ii) date of Secretary of State's decision;

(iii) date of receipt by appellant of written notice of the Secretary of State’s decision;

(iv) a clear and concise statement, not to exceed five hundred words, setting forth appellant's claim and showing that the appellant is entitled to the relief sought;

(v) citations to the portion(s) of the statement of relevant facts submitted by the filing entity with the report at issue supporting appellant's claim; and

(vi) the name, address, email address and phone number of appellant or, if appellant is represented by counsel, of appellant's counsel.

(2) effect personal service of a copy of the appeal, by a person not a party to the appeal who is over 18 years, upon the Secretary of State, or a person designated to accept service on behalf of the Secretary of State; and

(3) immediately upon completion of personal service, transmit the original appeal, together with affidavits of service in the form set forth below, by first class mail to the Office of Counsel, New York State Department of State, One Commerce Plaza, 99 Washington Avenue, Suite 1120, Albany, New York 12231-0001.

(4) Notwithstanding paragraphs (2) and (3) of subdivision (d) of this section, a filing entity may institute and serve an appeal on the Secretary of State through an electronic filing system maintained by the Department of State.

    FORM FOR AFFIDAVIT OF PERSONAL SERVICE

    STATE OF NEW YORK )

    COUNTY OF ............. ) ss:

    ...................... being duly sworn, deposes and says that (s)he is over the age of eighteen years, and is not a party in this proceeding, that on the ..... day of ........, 20... at No. ............., in the City of Albany, County of Albany, (s)he served the annexed appeal on ....................., by delivering and leaving the same with ...................., at said time and place.

    ...................... (signature)

    Subscribed and sworn to before me

    this ...... day of .........., 20..

    ..................... (notary public)

(e) Response and record.

(1) The Secretary of State shall, within 10 days from service of the appeal pursuant to subdivision (d) of this section, prepare a response, in letter format signed by respondents or respondents’ counsel, that shall contain the following information:

(i) the name of the appellant;

(ii) the name of respondent;

(iii) the underlying decision by the Secretary of State relating to the report at issue;

(iv) the name and contact information of the administrative hearing officer;

(v) a reference to the particular sections of the statutes and rules involved, where possible;

(vi) a clear and concise statement, not to exceed five hundred words, setting forth respondents' position with respect to appellant's claim, including any applicable defense to such claim;

(vii) the record and exhibits supporting respondents' position; and

(viii) the name, address and phone number of respondents' counsel.

(2) The Secretary of State shall serve a copy of such joint response upon the appellant or, if appellant is represented by counsel, upon appellant's counsel. Such service may be made electronically, if appellant has consented to electronic service.  In the absence of electronic service, the Secretary of State shall immediately transmit by first class mail the original response and the record of prior proceedings to the administrative hearing officer, together with either an affidavit of personal service, in the form set forth above, or an affidavit of service by mail in the form set forth below:

    FORM FOR AFFIDAVIT OF SERVICE BY MAIL

    STATE OF NEW YORK )

    COUNTY OF ............ ) ss:

    ................. being duly sworn, deposes and says that (s)he is/they are over the age of eighteen years and is not a party in this proceeding; that on the ....... day of ............., 20.., deponent served the within response upon ................... in this action, at ......................, the address designated by ......................... for that purpose, by depositing a true copy of the same by mail, enclosed in a post paid, properly addressed wrapper, in .................... a post office ........... official depository under the exclusive care and custody of the United States Post Office Department within the State of New York.

    ........................... (signature)

    Subscribed and sworn to before me

    this ............ day of ........., 20...

    ............................... (signature and title of officer)

(3) The record of prior proceedings shall include but not be limited to:

(i) any submission made by the filing entity to the Secretary of State in connection with the report at issue;

(ii) all records relied upon by the Secretary of State in issuing its notice of intent to publish;

(iii) the notice of intent to publish;

(iv) the reports of the filing entity subject to the notice of intent to publish, in the form in which the Secretary of State intends to publish such reports.

(f) Additional submissions to the record. The administrative hearing officer may require the service and filing of submissions in addition to those served in accordance with this section upon such terms and conditions as the administrative hearing officer may specify. The administrative hearing officer has discretion, in the determination of an appeal, to take into consideration any official records or reports on file in the Department of State which relate to issues involved in such appeal, including but not limited to records relied upon by the Department of State in issuing its Notice of Intent to Publish, provided that nothing contained herein shall require of production of deliberative communications between the Department of State, Department of Taxation and Finance or the Department of Law.

(g) Determination of administrative appeal.

(1) Dismissal of appeal.  The administrative hearing officer has discretion, and at any stage of the proceedings, to dismiss an appeal if it appears that the appeal is untimely, that the appeal does not set forth a clear and concise statement of the appellant's claim, that the appeal has become academic, or that other legally sufficient grounds exist to dismiss the appeal.

(2) Burden of proof.  The filing entity has the burden of proving, by the preponderance of the evidence, that the determination by the Secretary of State, that relevant facts presented by the covered entity failed to demonstrate that disclosure of all or a portion of such report may cause disclosure-related harm, was unsupported by the filing entity’s submission.   

(3) Ruling on administrative appeal.

(i) The administrative hearing officer’s ruling shall be in writing and shall describe the issues, recite the relevant facts, the pertinent provisions of law and regulations, and make a finding as to whether the Secretary of State’s determination to publish reports is supported by the reports, documents, and relevant facts provided with such reports by the filing entity.

(ii) A copy of such decision shall be mailed, by certified and regular mail, to all parties or a party’s attorney or other designated hearing representative.

(iii) Where the administrative hearing officer’s final ruling is adverse to the filing entity, the filing entity may seek judicial review in accordance with the provisions of article 78 of the Civil Practice Law and Rules.

146.10 Publication of Reports

(a) Whenever a filing entity fails to provide the Department of State with a statement of relevant facts pursuant to subdivision (b) of section 146.4 or 146.5 of this Part, upon expiration of the time for a filing entity to provide the Secretary with notice of intent to appeal a Notice of Intent to Publish any report filed with the Department of State, or whenever the Secretary makes a determination under section 93-a of the Executive Law, the Secretary may publish any report filed with the Department of State pursuant to Article 7-A of the Executive Law, and the mission statement provided by the filing entity, on its website.  Such publishing shall not include the names and addresses of individual donors to filing entities nor shall such publishing include a filing entity's Internal Revenue Service Form 990 Schedule B.

(b) Pursuant to section 93-a of the Executive Law, only a report or part of any report filed with the Department of State that was published pursuant to subdivision (a) of this section shall be made publicly available or disclosed when requested under Article 6 of the Public Officers Law. No information provided in a statement of relevant facts pursuant to subdivision (b) of section 146.4 or 146.5 of this Part shall be subject to public disclosure when requested under Article 6 of the Public Officers Law.

146.11 Severability

If any provision of this Part, or any application thereof to any entity or circumstance, is found to be invalid, such invalidity shall not affect any other provisions or applications of this Part that may be given effect without the invalid provisions or applications.  The provisions of this Part are thus declared to be severable.