COG-04-09-00010-P Fees for Copies of Records, Subject Matter List Updates, Update Committee on Open Government's Address

1/28/09 N.Y. St. Reg. COG-04-09-00010-P

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 4

January 28, 2009

RULE MAKING ACTIVITIES

COMMITTEE ON OPEN GOVERNMENT

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. COG-04-09-00010-P

Fees for Copies of Records, Subject Matter List Updates, Update Committee on Open Government's Address

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 repeal section 1401.8, add sections 1401.6(d) and 1401.8, and amend sections 1401.6(c) and 1401.7(g) of Title 21 NYCRR.

Statutory authority:

Public Officers Law, section 89(1)(b)(iii); L. 2008, ch. 223; L. 2008, ch. 499

Subject:

Fees for copies of records, subject matter list updates, update Committee on Open Government's address.

Purpose:

To conform with recent statutory amendments.

Text of proposed rule:

Repeal section 1401.8 and add a new section 1401.8 to read as follows:

1401.8 Fees. Except when a different fee is otherwise prescribed by statute:

(a) An agency shall not charge a fee for the following:

(1) inspection of records for which no redaction is permitted;

(2) search for, administrative costs of, or employee time to prepare photocopies of records;

(3) review of the content of requested records to determine the extent to which records must be disclosed or may be withheld; or

(4) any certification required pursuant to this Part.

(b) An agency may charge a fee for photocopies of records, provided that:

(1) the fee shall not exceed 25 cents per page for photocopies not exceeding 9 by 14 inches. This section shall not be construed to mandate the raising of fees when an agency in the past has charged less than 25 cents for such copies;

(2) the fee for photocopies of records in excess of 9 x 14 inches shall not exceed the actual cost of reproduction; or

(3) an agency has the authority to redact portions of a paper record and does so prior to disclosure of the record by making a photocopy from which the proper redactions are made.

(c) The fee an agency may charge for a copy of any other record is based on the actual cost of reproduction and may include only the following:

(i) an amount equal to the hourly salary attributed to the lowest paid employee who has the necessary skill required to prepare a copy of the requested record, but only when more than two hours of the employee's time is necessary to do so; and

(ii) the actual cost of the storage devices or media provided to the person making the request in complying with such request; or

(iii) the actual cost to the agency of engaging an outside professional service to prepare a copy of a record, but only when an agency's information technology equipment is inadequate to prepare a copy, and if such service is used to prepare the copy.

(d) When an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, or when doing so requires less employee time than engaging in manual retrieval or redactions from non-electronic records, the agency shall be required to retrieve or extract such record or data electronically. In such case, the agency may charge a fee in accordance with paragraph (c)(i) and (ii) above.

(e) An agency shall inform a person requesting a record of the estimated cost of preparing a copy of the record if more than two hours of an agency employee's time is needed, or if it is necessary to retain an outside professional service to prepare a copy of the record.

(f) An agency may require that the fee for copying or reproducing a record be paid in advance of the preparation of such copy.

(g) An agency may waive a fee in whole or in part when making copies of records available.

Amend subdivision (c) of section 1401.6 to read as follows:

(c) [The subject matter list shall be updated] Each agency shall update its subject matter list annually, and the date of the most recent update shall [appear on the first page of the subject matter] be conspicuously indicated on the list.

Add subdivision (d) of section 1401.6 to read as follows:

(d) Each state agency that maintains a website shall post its current list on its website and such posting shall be linked to the website of the Committee on Open Government. Any state agency that does not maintain a website shall arrange to have its list posted on the website of the Committee on Open Government.

Amend subdivision (g) of section 1401.7 to read as follows:

(g) The agency shall transmit to the Committee on Open Government copies of all appeals upon receipt of an appeal. Such copies shall be addressed to: the Committee on Open Government, Department of State, [41 State Street] One Commerce Plaza, 99 Washington Ave., Suite 650, Albany, NY 12231.

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

Janet Mercer, NYS Department of State, Committee on Open Government, One Commerce Plaza, 99 Washington Avenue, Suite 650, Albany, NY 12231, [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.

This action was not under consideration at the time this agency's regulatory agenda was submitted.

Consensus Rule Making Determination

The primary purpose of the rule is to implement the provisions of Public Officers Law § 87(1)(b) concerning fees that may be charged in response to requests. In particular, the rule would provide guidance to state and local agencies concerning fees for preparing copies of electronic records pursuant to the Freedom of Information Law. No person is likely to object to the adoption of the proposed rule because it implements statutory provisions which must be complied with by all state and local agencies and is otherwise non-controversial.

An additional purpose of the rule is to implement the provisions of Public Officers Law § 87(3)(c) concerning subject matter lists. In particular, the rule would provide guidance to state and local agencies concerning the frequency for updated subject matter lists and the requirement that state agencies make them available online. No person is likely to object to the adoption of the proposed rule because it implements statutory provisions which must be complied with by all state and local agencies and is otherwise non-controversial.

The final purpose of the rule is to update the mailing address for the Committee on Open Government.

Job Impact Statement

The primary purpose of the rule is to implement the provisions of Public Officers Law § 87(1)(b) concerning fees that may be charged in response to requests. In particular, the rule would provide guidance to state and local agencies concerning fees for preparing copies of electronic records pursuant to the Freedom of Information Law.

An additional purpose of the rule is to implement the provisions of Public Officers Law § 87(3)(c) concerning subject matter lists. In particular, the rule would provide guidance to state and local agencies concerning the frequency for updated subject matter lists and the requirement that state agencies make them available online.

The final purpose of the rule is to update the mailing address for the Committee on Open Government.

It is therefore apparent from the nature and purpose of the rule that it will not have a substantial adverse impact on jobs and employment opportunities.