S03940 Summary:

BILL NOS03940
 
SAME ASNo Same As
 
SPONSORKRUEGER
 
COSPNSRCOMRIE, LIU, MONTGOMERY, PARKER, SANDERS
 
MLTSPNSR
 
Amd 86 & 89, add 88-a, rpld 88 sub 1, Pub Off L; add 57.06, Arts & Cul L; rpld 5, amd 713, Exec L; add 33-a, Leg L; rpld 70-0113, 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.
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S03940 Actions:

BILL NOS03940
 
02/21/2019REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
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S03940 Committee Votes:

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S03940 Floor Votes:

There are no votes for this bill in this legislative session.
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S03940 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          3940
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                    February 21, 2019
                                       ___________
 
        Introduced by Sens. KRUEGER, COMRIE, LIU, MONTGOMERY, PARKER, SANDERS --
          read  twice  and  ordered printed, and when printed to be committed to
          the Committee on Investigations and Government Operations
 
        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  subdivision  1  of
          section  88  of  the  public officers law, relating to rules and regu-
          lations 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
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Legislative intent. The legislature finds that procedures
     2  and practice that promote transparency and accountability in the  execu-
     3  tive  and  legislative  branches serve the public interest and encourage
     4  public faith in government. Government  policies  which  allow  for  the
     5  destruction  of  emails  and  other  electronic governmental records and
     6  exempt the legislature from the Freedom of Information  Law  (FOIL)  run
     7  counter to these principles of transparency and accountability.
     8    Computers  and other electronic devices create many of the new records
     9  we use today, most commonly via email. These records, although electron-
    10  ic in format, are the same as records produced in other  formats.  Elec-
    11  tronic  records  show  how  one  conducts business, makes decisions, and
    12  carries out the people's  work.  They  are  evidence  of  decisions  and
    13  actions.    Fundamental  records  management  principles should apply to
    14  electronic records, as they apply to any record formats.
    15    The executive branch has adopted a policy allowing automatic  deletion
    16  of  emails  after 90 days, which has the potential to severely limit the
    17  public availability of vital information  regarding  the  operations  of
    18  agencies.  The  consequences  of such a policy are illustrated in a 2015
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08593-01-9

        S. 3940                             2
 
     1  judicial proceeding where the former Deputy  Secretary  for  Gaming  and
     2  Racing  indicated  he  was "aghast" to find that emails dating from 2013
     3  relevant to the case had been deleted.  The  deletion  of  these  emails
     4  undermines  the ability of the plaintiff in the case to seek redress. An
     5  administration spokesman defended deletion of the emails on  the  ground
     6  they had not been the subject of a FOIL request.
     7    This  legislation  would  ensure  that under the guidance of the State
     8  Archives, agencies and legislative bodies must take a proactive approach
     9  to the preservation of electronic records.  It  would  establish  strict
    10  standards for permanent preservation of the records of policymakers, and
    11  prohibit deletion of emails from government officials for at least seven
    12  years.  It  is modeled on federal policies adopted after extensive study
    13  of appropriate practices for  handling  electronic  records.  The  state
    14  already  uses email management software that would enable implementation
    15  of such a policy at minimal cost.
    16    Moreover, the exemption of the legislature from presumption of  access
    17  in  the  Freedom  of  Information  Law  also undermines transparency and
    18  accountability. The public should have  access  to  the  same  types  of
    19  information  from  the  legislature  that it can already access from the
    20  Executive Branch and local government agencies through the FOIL process.
    21  Recent scandals involving individual legislators only highlight the need
    22  for increasing the availability  of  information  regarding  legislative
    23  records.  This  bill would establish the same standards for treating the
    24  Executive and Legislative branches  under  FOIL.  The  bill  would  also
    25  extend  to the legislature the various exemptions from disclosure in the
    26  FOIL law, including  records  that  would  compromise  personal  privacy
    27  rights  or  that  are  related  to internal deliberations of the body or
    28  agency.
    29    § 2. Subdivision 3 of section 86 of the public officers law, as  added
    30  by  chapter  933 of the laws of 1977, is amended and a new subdivision 6
    31  is added to read as follows:
    32    3. "Agency" means any state or municipal  department,  board,  bureau,
    33  division,  commission,  committee, public authority, public corporation,
    34  council, office or other governmental entity performing  a  governmental
    35  or  proprietary function for the state or any one or more municipalities
    36  thereof, except the judiciary [or the state legislature].
    37    6. "Archives" means any institution as defined by section 57.05 of the
    38  arts and cultural affairs law.
    39    § 3. Subdivision 1 of  section  88  of  the  public  officers  law  is
    40  REPEALED.
    41    §  4.  The public officers law is amended by adding a new section 88-a
    42  to read as follows:
    43    § 88-a. Electronic records  retention.  1.    Each  state  agency,  as
    44  defined  by  paragraph  b of subdivision four of section eighty-seven of
    45  the public officers law, and the state legislature in  conjunction  with
    46  the state archives, shall preserve electronic records in accordance with
    47  the provisions of this section.
    48    2. Each agency shall identify the accounts of policy makers subject to
    49  the provisions of this article.  For the purpose of this section, "poli-
    50  cy maker" means any statewide elected official, state officer or employ-
    51  ee,  member  of  the  legislature,  or  legislative  employee subject to
    52  section seventy-three-a of the public officers law.
    53    3. (a) The provisions of this section and article six of this  chapter
    54  shall  apply  to  all  email  accounts  of  any  policy maker, including
    55  accounts managed by other staff, including, but not limited to  personal
    56  assistants, confidential assistants, or administrative assistants.

        S. 3940                             3
 
     1    (b)  The provisions of this section and of article six of this chapter
     2  shall apply to all email accounts of any policy maker, regardless of the
     3  address names used by the public official for agency business.
     4    4.  Electronic  records  shall  be  maintained  in accordance with the
     5  following general records retention schedule:
     6    (a) Email and other electronic  records  of  policy  makers.  Agencies
     7  shall  transfer  documentation adequate to identify, service, and inter-
     8  pret the permanent electronic records, which includes the position title
     9  and begin and end dates for each email account captured in this subdivi-
    10  sion.  The disposition of electronic records described in this paragraph
    11  is permanent. Such electronic records shall be transferred to the  state
    12  archives  no sooner than fifteen years after the date of the creation of
    13  the electronic record and no later  than  twenty-five  years  after  the
    14  creation of the electronic record.
    15    (b)  Email  and  other electronic records of other officials. Agencies
    16  shall transfer documentation adequate to identify, service,  and  inter-
    17  pret the permanent electronic records, which includes the position title
    18  and begin and end dates for each email account captured in this subdivi-
    19  sion.  The disposition of electronic records described in this paragraph
    20  is  temporary. Such electronic records shall be transferred to the state
    21  archives no sooner than seven years after the date of  creation  of  the
    22  electronic  record,  provided, however, that longer retention is author-
    23  ized if required for business use by the agency.
    24    5. Production of electronic records by agencies shall comply with  the
    25  following provisions:
    26    (a)  Agencies  shall  transfer  to  the  state  archives documentation
    27  adequate to identify, service, and interpret  the  permanent  electronic
    28  records.
    29    (b)  Documentation  for  data files and data bases must include record
    30  layouts, data element definitions, and code  translation  tables  (code-
    31  books) for coded data. Data element definitions, codes used to represent
    32  data  values,  and  interpretations of these codes must match the actual
    33  format and codes as transferred.
    34    (c) Digital geospatial data files must include the documentation spec-
    35  ified in paragraph (b) of this subdivision. In  addition,  documentation
    36  for  digital geospatial data files can include metadata that conforms to
    37  the Federal Geographic Data Committee's Content  Standards  for  Digital
    38  Geospatial  Metadata, as specified in Executive Order 12906 of April 11,
    39  1994 (3 CFR, 1995 Comp., p. 882).
    40    (d) Documentation for electronic files  containing  textual  documents
    41  with SGML tags must include a table for interpreting the SGML tags, when
    42  appropriate.
    43    (e)  Documentation  for the following types of electronic records must
    44  conform to formats specified in National Archives and  Records  Adminis-
    45  tration  Bulletin  2014-04;  Appendix A: Revised Format Guidance for the
    46  Transfer of  Permanent  Electronic  Records.  Tables  of  File  Formats;
    47  provided, however, that the state archive may approve additional accept-
    48  able file formats:
    49    (i) email messages with attachments;
    50    (ii) scanned images of textual records;
    51    (iii) records in portable document format (PDF);
    52    (iv) digital photographic records; and
    53    (v) web content records.
    54    6.  (a)  Any  aggrieved  person  shall  have  standing  to enforce the
    55  provisions of this section by the commencement of a proceeding  pursuant
    56  to  article  seventy-eight  of  the  civil practice law and rules, or an

        S. 3940                             4
 
     1  action for declaratory judgment  and  injunctive  relief.  In  any  such
     2  action  or  proceeding,  if  a court determines that an agency failed to
     3  comply with the provisions of this section, the  court  shall  have  the
     4  power,  in  its  discretion,  upon good cause shown, to declare that the
     5  agency violated the provisions of this section. If the court  determines
     6  that  an  agency  has violated the provisions of this section, the court
     7  may require the members of the  agency  to  participate  in  a  training
     8  session  concerning the obligations imposed by this section conducted by
     9  the staff of the state archives.
    10    (b) In any proceeding brought pursuant  to  this  section,  costs  and
    11  reasonable  attorney's  fees  may  be  awarded  by  the  court,  in  its
    12  discretion, to the successful party. If a court determines that an elec-
    13  tronic record was not retained in material violation  of  this  article,
    14  the  court  shall  award  costs  and  reasonable  attorney's fees to the
    15  successful petitioner, unless there was a reasonable basis for the agen-
    16  cy to believe that it acted in compliance with the  provisions  of  this
    17  section.
    18    (c)  The statute of limitations in an article seventy-eight proceeding
    19  with respect to an action taken at executive session shall  commence  to
    20  run from the date the electronic record at issue has been made available
    21  to the public.
    22    7.  Nothing  in  this  section shall bar an employee of an agency from
    23  maintaining a record slated for destruction under the  retention  sched-
    24  ules  developed  pursuant  to  section  57.06  of  the arts and cultural
    25  affairs law, if such record is relevant to an ongoing  matter  and  such
    26  disclosure would not violate any privilege or confidentiality interest.
    27    §  5.  Subparagraphs  vi  and vii of paragraph (b) of subdivision 2 of
    28  section 89 of the public officers law, as amended by section 11 of  part
    29  U  of chapter 61 of the laws of 2011, are amended and a new subparagraph
    30  viii is added to read as follows:
    31    vi. information of a personal nature contained in a  workers'  compen-
    32  sation  record,  except  as provided by section one hundred ten-a of the
    33  workers' compensation law; [or]
    34    vii. disclosure of electronic contact information, such as  an  e-mail
    35  address  or  a  social  network username, that has been collected from a
    36  taxpayer under section one hundred four of the real property tax law[.];
    37  and
    38    viii. communications of a personal nature  between  state  legislators
    39  and their constituents.
    40    §  6.  The  arts  and  cultural affairs law is amended by adding a new
    41  section 57.06 to read as follows:
    42    § 57.06. Electronic records retention. 1.  The  state  archives  shall
    43  develop  and  implement  a  protocol  for the preservation of electronic
    44  records of the state in accordance with the provisions of this  article.
    45  Such protocol shall include:
    46    (a)  a  process by which senders and recipients of electronic mail can
    47  categorize such mail into records that will be retained, and those  that
    48  will be subject to procedures for regular disposition of such records in
    49  the ordinary course of business;
    50    (b)  the  delineation of such other standards or procedures which will
    51  assist in the identification and preservation of electronic records;
    52    (c) the identification of software and other technological  aids  that
    53  would  facilitate  records  preservation  and  review,  and which may be
    54  purchased within available resources; and

        S. 3940                             5
 
     1    (d) a schedule for records retention for specific types of records and
     2  identification of historically important records  developed  in  concert
     3  with the agencies providing the electronic records.
     4    2. Nothing in this section shall bar an employee of the state archives
     5  from  maintaining  a  record  slated for destruction under the retention
     6  schedule, or from providing such record to an agency, if such record  is
     7  relevant to an ongoing matter, and such disclosure would not violate any
     8  privilege or confidentiality interest.
     9    § 7. Section 5 of the executive law is REPEALED.
    10    §  8. Subdivision 3 of section 713 of the executive law, as amended by
    11  section 16 of part B of chapter 56 of the laws of 2010,  is  amended  to
    12  read as follows:
    13    3.  Any reports prepared pursuant to this article shall not be subject
    14  to disclosure pursuant to [section  eighty-eight]  article  six  of  the
    15  public officers law.
    16    §  9.  The  legislative law is amended by adding a new section 33-a to
    17  read as follows:
    18    § 33-a. Disclosure. All members, officers and employees of the  senate
    19  and  the  assembly  shall be subject to the provisions of article six of
    20  the public officers law.
    21    § 10.  Section  70-0113  of  the  environmental  conservation  law  is
    22  REPEALED.
    23    §  11.  This  act  shall  take effect on the one hundred twentieth day
    24  after it shall have become a law.
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