Amd SS86 & 89, add S88-a, rpld S88 sub 1, Pub Off L; add S57.06, Arts & Cul L; rpld S5, amd S713, Exec L; add
S33-a, Leg L; rpld S70-0113, En Con L
Relates to the retention of state records; repeals provisions relating to rules and regulations governing access to state legislative records; repeals provisions relating to executive records; repeals provisions relating to information confidentially disclosed by applicants.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6078A
SPONSOR: O'Donnell TITLE OF BILL: An act to amend the public officers law, the arts and
cultural affairs law, the executive law and the legislative law, in
relation to the retention of state electronic records; to repeal subdi-
vision 1 of section 88 of the public officers law, relating to rules and
regulations governing access to state legislative records; to repeal
section 5 of the executive law, relating to executive records; and to
repeal section 70-0113 of the environmental conservation law, relating
to information confidentially disclosed by applicants
PURPOSE:
To establish procedures for retention of and access to state electronic
records and include the state legislature in the provisions of the free-
dom of information law currently applicable to state agencies.
SUMMARY OF PROVISIONS:
Section 1 is the legislative intent.
Section 2 amends subdivision 3 of section 86 of the public officers law
to include the legislature in provisions of the freedom of information
law that apply to state agencies and to define archives for the purpose
of this section.
Section 3 repeals subdivision 1 of section 88 of the public officers
law, removing the role of the temporary president of the Senate and
speaker of the Assembly in setting rules for access to legislative
records.
Section 4 adds a new section 88-a to the public officers law requiring
agencies, in conjunction with the state archives, to preserve electronic
records. Records for policy makers as defined by section 73-a of the
public officers law will be required to be retained by the agency for
not less than fifteen years before transfer to the archives for perma-
nent retention. Records of other state employees will be required to be
retained by the agency for not less than seven years before transfer to
the state archives which will determine what records should be retained
by the archive. Establishes standards for the production, cataloging and
format of electronic records.
Establishes rules for challenging failure to comply with these require-
ments, including a right of private action.
Section 5 amends subdivision 2 of section 89 of the public officers law
to protect the privacy of individual constituents who seek a legisla-
tor's assistance with personal matters.
Section 6 amends section 57.06 of the arts and cultural affairs law to
require the state archive establish a protocol for preservation of elec-
tronic records consistent with this law.
Section 7 repeals section 5 of the executive law removing the role of
the governor in setting rules for handling executive records.
Section 8 amends subdivision 3 of section 713 of the executive law to
update cross-references to public officers law.
Section 9 adds a new section 33-a to the legislative law subjecting
legislative employees to article six of the public officers law.
Section 10 repeals section 70-0113 of the environmental conservation
law, removing reference to separate handling of legislative records
under the freedom of information law.
Section 11 is the effective date.
JUSTIFICATION:
Procedures and practice that promote transparency and accountability in
the executive and legislative branches serve the public interest and
encourage public faith in government. Current policies which allow for
the destruction of emails and other electronic governmental records and
exempt the legislature from the Freedom of Information Law (FOIL) run
counter to these principles of transparency and accountability.
Computers and other electronic devices create many of the new records we
use today, most commonly via emails. These records, although electronic
in format, are the same as records in other formats. Electronic records
show how you conduct business, make decisions, and carry out your work.
They are evidence of decisions and actions. Fundamental records manage-
ment principles should apply to electronic records, as they apply to
other record formats.
The executive branch has adopted a policy allowing automatic deletion of
emails after 90 days, which has the potential to severely limit the
public availability of vital information regarding the operations of
agencies. The consequences of such a policy are illustrated in a 2015
court case where the former Deputy Secretary for Gaming and Racing indi-
cated he was "aghast" to find that emails dating from 2013 relevant to
the litigation matter had been deleted. The deletion of these emails
undermines the ability of the plaintiff in the case to seek a full
redress of the issues. An administration spokesman defended deletion of
the emails on the grounds they had not been the subject of a FOIL
request.
This legislation would ensure that under the guidance of the State
Archives, agencies and legislative bodies would need to take a proactive
approach to the preservation of electronic records. It would establish
strict standards for permanent preservation of the records of policymak-
ers, and prohibit deletion of emails from other government officials for
at least seven years. It is modeled on federal policies adopted after
extensive study of appropriate practices for handling electronic
records. The state already uses email management software that would
enable implementation of such a policy at minimal cost.
The exemption of the legislature from the Freedom of Information Law
also undermines transparency and accountability. The public should have
full access to the same types of information from the legislature that
it can already access from the Executive Branch through the FOIL proc-
ess. Recent scandals involving individual legislators only highlight the
need for increasing the availability of information regarding legisla-
tive records. This bill would establish the same standards for treating
the Executive and Legislative branches under FOIL. The bill would also
extend to the legislature the various exemptions from disclosure in the
FOIL law, including records that would compromise personal privacy
rights or that are related to internal deliberations of the body or
agency.
LEGISLATIVE HISTORY:
New bill
FISCAL IMPLICATIONS:
To be determined
EFFECTIVE DATE:
One hundred and twenty days after becoming law.
