LQR-02-16-00002-P Update Outdated Freedom of Information Law Procedures Utilized by Authority

1/13/16 N.Y. St. Reg. LQR-02-16-00002-P

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 2

January 13, 2016

RULE MAKING ACTIVITIES

STATE LIQUOR AUTHORITY

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. LQR-02-16-00002-P

Update Outdated Freedom of Information Law Procedures Utilized by Authority

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

This is a consensus rule making to amend Part 95 of Title 9 NYCRR.

Statutory authority:

Public Officers Law, section 87(1)(b)

Subject:

Update outdated Freedom of Information Law procedures utilized by Authority.

Purpose:

To update Authority procedures and ensure compliance with Freedom of information Law requirements under Public Officers Law, art. 6.

Text of proposed rule:

Title 9, Subtitle B, of the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR), is hereby amended to include amendments to parts 95.1, 95.2, 95.3, 95.5, 95.6, 95.7, 95.8, and 95.9. In addition, Part 95.4 is hereby repealed.

§ 95.1 Purpose and scope

(a) The people's right to know the process of government decision-making and the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.

(b) This Part provides information concerning the procedures by which records may be obtained.

[(c) Personnel shall furnish to the public the information and records required by the Freedom of Information Law and those which were furnished to the public prior to its enactment.

(d) Any conflicts among laws governing public access to records shall be construed in favor of the widest possible availability of public records.]

§ 95.2 Designation of records access officer

(a) The Chairman of the State Liquor Authority is responsible for insuring compliance with the regulations in this Part and [designates the following persons as] designating an Authority employee as the [r]Records [a]Access [o]Officer[s:

(1) Secretary to the Authority.

(2) Deputy commissioner in charge of compliance bureau.

(3) Deputy commissioner in charge of Zone II office.

(4) Deputy commissioner in charge of Zone III office].

(b) The Records [a]Access [o]Officer[s are] is responsible for insuring appropriate agency responses to public requests for access to records. [However, the public shall not be denied access to records through officials who have in the past been authorized to make records or information available.] The Records [a]Access [o]Officer[s] shall assure that personnel:

(1) Maintain an up-to-date subject matter list.

(2) Assist [the requester] in identifying requested records, if necessary.

(3) Upon locating the records, take one of the following actions in accordance with section 95.6(b) of this Part:

(i) Make records promptly available for inspection; or

(ii) Deny access to the records in whole or in part and explain in writing the reasons therefor.

(4) Upon request for copies of records:

(i) Make a copy available upon payment or offer to pay established fees, if any, in accordance with section 95.8 of this Part; or

(ii) Permit the requester to copy those records.

(5) Upon request, certify that a [transcript] record is a true copy of records copied.

(6) Upon failure to locate records, certify that:

(i) The State Liquor Authority is not the legal custodian for such records, or

(ii) The records of which the State Liquor Authority is the legal custodian, after diligent search, cannot be found.

§ 95.3 [Designation of fiscal officer] Record Maintenance

(a) The [director of manpower management is designated the fiscal officer, who shall certify the payroll and respond to requests, in accordance with section 95.6(b) of this Part, for an itemized record setting forth the name, address, title and salary of every officer or employee of the agency.] Secretary to the Authority will maintain a record of the final vote of each member in every proceeding in which the members vote.

(b) [Either the chief executive officer or the fiscal officer shall make the payroll items listed above available to any person including bona fide members of the news media as required under section 88(1)(g), (1)(i), and (10) of the Freedom of Information Law.] The Chairman of the Authority or his designee shall maintain a record setting forth the name, public office address, title and salary of every officer or employee of the Authority.

(c) The Records Access Officer shall maintain a reasonably detailed current list, by subject matter, of all records in the possession of the Authority.

§ 95.5 Hours for public inspection and location of records

(a) Requests for public access to records shall be accepted and records produced between [10] 8:30 a.m. and 4:30 p.m. on all days when the Authority is regularly open for business.

(b) Records shall be available for public inspection and copying at:

(1) 317 Lenox Avenue, New York, NY 10027; and

(2) 80 South Swan Street, Suite 900, Albany, NY 12210; and

(3) 535 Washington Street, Buffalo, NY 14230.

(c) No records may be removed by the requester from the office where the record is located without the permission of the Records Access Officer.

§ 95.6 Requests for public access to records

(a) A request for records shall be in writing and should be sufficiently detailed to identify the records. [However, written requests shall not be required for records that have been customarily available without written request.] Whether a request is made in writing, via email or in person, where possible, the requester should supply information regarding dates, titles, file designations or other information which may help identify the records. All requests for records may be submitted to [e-mail] or mailed to: Records Access Officer, New York State Liquor Authority, 80 South Swan Street, Suite 900, Albany, NY 12210

(b)[(1) Except under extraordinary circumstances, officials shall respond to a request for records no more than five business days after receipt of the request, whether the request is oral or in writing.

(2) If, because of extraordinary circumstances, more than five business days are required to respond to a request, receipt of the request shall be acknowledged within five business days after the request is received. The acknowledgment shall state the reason for delay and estimate the date when a reply will be made.

(c) A request for access to records should be sufficiently detailed to identify the records. Where possible, the requester should supply information regarding dates, titles, file designations or other information which may help identify the records.

(d)(1) A current list of all records, by subject matter, shall be available for public inspection and copying. The list shall be sufficiently detailed to permit the requester to identify the file category of the records sought.

(2) The subject matter list shall be updated periodically and the date of the most recent updating shall appear on the first page.

(e) No records may be removed by the requester from the office where the record is located without the permission of a records access officer or the chief executive officer.] The Records Access Officer shall:

(1) Make the requested record available; or

(2) Deny access to the requested record in writing; or

(3) Furnish written acknowledgment of the request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied.

§ 95.7 Appeal of [D]denial of access to records

(a) Denial of access to records shall be in writing stating the reason therefor and advising the requester of the right to appeal to the individuals authorized to hear appeals.

(b) If a request[ed] for records [are] is not [provided promptly, as required in] responded to in accordance with section 95.6(b) of this Part, such [failure] request shall also be deemed a denial of access.

(c) [Any one of the following persons shall hear appeals for denial of access to records under the Freedom of Information Law:

(1) Chief Executive Officer 2 World Trade Center, New York City.

(2) Counsel to the Authority 2 World Trade Center, New York City.

(3) Deputy Commissioner in charge of Licensing--Statewide 2 World Trade Center, New York City.] The Chairman shall appoint an attorney within the Authority to serve as the FOIL Appeals Officer to hear appeals for denial of access to records.

(d) The time for deciding an appeal by the individuals designated to hear appeals shall commence upon receipt of written appeal identifying:

(1) The date of the appeal.

(2) The date and location of the requests for records.

(3) The records to which the requester was denied access.

(4) [Whether the denial of access was in writing or was by failure to provide records promptly as required by section 95.6(b) of this Part.

(5)] The name and return address of the requester.

(e) The individual designated to hear appeals shall inform the requester of his decision in writing within [seven] ten business days of receipt of an appeal.

(f) A final denial of access to a requested record, as provided for in subdivision (e) of this section, shall be subject to court review, as provided for in article 78 of the Civil Practice Law and Rules.

§ 95.8 Fees

(a) There shall be no fee charged for

(1) Inspection of records.

(2) Search for records, except that a reasonable fee may be charged in the discretion of the [chief executive officer or the secretary to] Chairman of the Authority where such search will entail an inordinate length of time.

(3) Any certification pursuant to this Part.

(b) Fees shall be charged for:

(1) Except as otherwise provided by the rules of the Authority, copies of records shall be provided at a fee of 25 cents per page not exceeding 8 1/2 inches by 14 inches in size.

(2) The fees for other types of copies or transcripts and for certification shall be such reasonable amounts as the [chief executive officer or the secretary to] Chairman of the Authority shall establish. Notwithstanding the above, the [aforesaid chief executive officer or the secretary to] Chairman of the Authority may, in his discretion, waive all or any portion of the fees authorized by this section for any records or class of records.

§ 95.9 Public notice

A notice containing the job title and business address of the [r]Records [a]Access [o]Officer[s and fiscal officer]; the job title, business address and telephone number of the appeal person or persons or body, and the location where records can be seen or copied, shall be posted [in a conspicuous location wherever records are kept] on the Authority’s website.

Text of proposed rule and any required statements and analyses may be obtained from:

Paul Karamanol, Senior Attorney, State Liquor Authority, 80 South Swan Street, Suite 900, Albany, NY 12210, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Consensus Rule Making Determination

This statement is being submitted pursuant to subparagraph (i) of paragraph (b) of subdivision (1) of section 202 of the State Administrative Procedure Act and in support of the New York State Liquor Authority’s (“Authority”) Notice of Proposed Rulemaking seeking to amend Parts 95.1, 95.2, 95.3, 95.5, 95.6, 95.7, 95.8, and 95.9 as well as the repeal of Part 95.4 of Title 9, Subtitle B, of the Official Compilation of Codes, Rules and Regulations of the State of New York (N.Y.C.R.R.)

It is apparent from the nature and purpose of these proposed amendments that no person is likely to object to their adoption as written. Part 95.1 sets forth the purpose and scope of Part 95 and the proposed changes merely simplify the directives to Authority staff and codify current practices. Part 95.2 sets forth the designation of multiple Records Access Officers and the proposed change would clarify that the designation of a single Records Access Officer shall be the responsibility of the Chairman of the Authority, thereby alleviating confusion and enhancing transparency in the FOIL process. Part 95.3 sets forth the designation of a Fiscal Officer, and the proposed changes would eliminate that outdated position and clearly set forth the recordkeeping responsibilities of several Authority staff in keeping with statutory requirements, thereby merely codifying current practices. Part 95.4 sets forth locations for public inspection of records, including outdated references to Authority office locations, and the Authority seeks repeal of this Part in its entirety. Part 95.5 sets forth hours for public inspection of Authority records and the proposed changes would expand the hours for public inspections as well as set forth updated Authority office locations, thereby enhancing transparency and alleviating confusion in the FOIL process. Part 95.6 sets forth procedures for public requests for access to Authority records, and the proposed changes would simplify the procedures as well as provide for electronic mail requests, thereby codifying current practices. Part 95.7 sets for procedures available to persons upon a denial of a request for access to records, and the proposed changes simplify and codify the FOIL appeals process as well as establish a single FOIL Appeals Officer to be appointed by the Chairman thereby alleviating confusion and enhancing transparency. Part 95.8 sets forth fees associated with FOIL requests and the proposed changes clarify that the Chairman shall have the sole discretion to charge certain fees associated therewith thereby alleviating confusion. Part 95.9 sets forth the public notice requirements enabling the public to locate the Authority’s Records Access Officer and the proposed changes provide for the Authority’s website to be utilized for that purpose.

Consistent with the definition of “consensus rule” as set forth in section 102(11) of the State Administrative Procedure Act, the Authority has determined that these proposals, which update multiple outdated references to Authority FOIL procedures to enhance transparency and public accountability, are non-controversial in nature and, therefore, no person is likely to object to their adoption as written.

Job Impact Statement

This statement is being submitted pursuant to subdivision (2) of section 201-a of the State Administrative Procedure Act and in support of the New York State Liquor Authority’s (“Authority”) Notice of Proposed Rulemaking seeking to amend Parts 95.1, 95.2, 95.3, 95.5, 95.6, 95.7, 95.8, and 95.9 as well as the repeal of Part 95.4 of Title 9, Subtitle B, of the Official Compilation of Codes, Rules and Regulations of the State of New York (N.Y.C.R.R.)

It is apparent from the nature and purpose of these proposed amendments that they have no impact on jobs or employment opportunities in New York. These proposed amendments merely update multiple outdated references to Authority FOIL procedures to enhance transparency and public accountability. As a result, the Authority has determined that these proposed amendments will have no substantial adverse impact on any private or public sector jobs or employment opportunities and a full Job Impact Statement is not warranted.