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 6150 of Title 9 NYCRR.
Statutory authority:
Public Officers Law, section 87(1)(b); Executive Law, section 837(13)
Subject:
Availability of records.
Purpose:
Update provisions regarding availability of Division's records.
Text of proposed rule:
1. Part 6150 of title 9 NYCRR is amended as follows:
PART 6150
AVAILABILITY OF RECORDS [FOR PUBLIC INSPECTION AND COPYING]
Section 6150.1. Purpose. The purpose of this Part is to set forth the [methods and] procedures governing the availability[, location, and nature] of [those] records of the Division of Criminal Justice Services [subject] pursuant to the provisions of article 6 of the Public Officers Law, known as the Freedom of Information Law.
Section 6150.2. Definitions. For the purposes of this Part:
(a) The term DCJS means the Division of Criminal Justice Services.
(b) Record or records means any information kept, held, filed, produced or reproduced by, with or for an agency or the State Legislature, in any physical form whatsoever, including but not limited to reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.
(c) [The term statistical tabulation means a collection or orderly presentation of numerical data logically arranged in columns and rows or graphically.
(d) The term factual tabulation means a collection of statements of objective information logically arranged which is empirically derived and reflects objective reality, actual existence or an actual occurrence.
(e) The term workday means any day except Saturday, Sunday, a public holiday or, with respect to a particular office of DCJS, a day on which that office is otherwise closed for regular business.
(f)] The term commissioner means the Commissioner of the Division of Criminal Justice Services.
[(g)] (d) The term records access officer means the [associate public information specialist and/or any other employees] employee designated by the commissioner to receive and respond to inquiries [to inspect or copy records maintained by DCJS] made pursuant to the Freedom of Information Law.
[(h) The term fiscal officer means the administrative officer of DCJS and/or any other employee designated by the commissioner to certify the DCJS payroll.]
Section 6150.3. [Nature of records] Records available to the public. [Subject to the exceptions set forth in section 6150.4 of this Part, all] All records maintained by DCJS shall be available [for public inspection and copying.] to the public pursuant to the Freedom of Information Law and DCJS may deny access to records or portions of records only in accordance with section eighty-seven of the Public Officers Law. [These shall include but not be limited to:
(a) Final opinions and orders made in the adjudication of cases;
(b) Statements of policy and interpretations which have been adopted by DCJS and any statistical or factual tabulations which led to the formulation thereof;
(c) Minutes of public meetings of any public boards or committees and any final determinations and dissenting opinions of their members, including a record of the final votes of each member of the governing body;
(d) Minutes of public hearings held by DCJS;
(e) Internal or external audits and statistical or factual tabulations made by or for DCJS;
(f) Administrative staff manuals and instructions to staff that affect members of the public;
(g) An itemized payroll record for DCJS, indicating the name, business address, title, and salary of every officer or employee of DCJS, except that in the case of law enforcement employees the record shall indicate the title and salary only; and
(h) Any other files, records, papers or documents required by any other provision of law to be made available for public inspection.
Section 6150.4. Records exempt from disclosure. Notwithstanding the provisions of section 6150.3 above, the following types of records shall be exempt from public inspection and/or copying:
(a) Records which are specifically exempt from disclosure by State or Federal statute;
(b) Records constituting information the disclosure of which would result in an unwarranted invasion of personal privacy. An unwarranted invasion of personal privacy shall include, but not be limited to:
(1) disclosure of such personal matters as may have been reported in confidence to DCJS or any other State or local agency or municipality, and the publication of which is not relevant or essential to the ordinary work of DCJS;
(2) disclosure of employment, medical or credit histories or personal references of applicants for employment, unless the applicant has provided a written release permitting such disclosure;
(3) disclosure of items involving the medical or personal records of a client or patient in a hospital or medical facility;
(4) the sale or release of lists of names and addresses in possession of any agency or municipality if such lists are to be used for private, commercial or fund-raising purposes;
(5) disclosure of items of a personal nature which would result in economic or personal hardship to the subject party and when the publication of such records is not relevant or essential to the ordinary work of DCJS; and
(6) disclosure of information contained in the criminal history file, license and employment file and wanted and missing persons file, maintained by DCJS, including any and all information contained in such files;
(c) disclosure of information which if disclosed would impair present or imminent contract awards or collective bargaining negotiations;
(d) disclosure of information which constitutes trade secrets or maintained for the regulation of commercial enterprise and would cause substantial injury to the competitive position of the subject enterprise;
(e) Investigatory files compiled for law enforcement purposes, including administrative and criminal law enforcement proceedings, and other information related to the operations of criminal justice agencies that are sensitive or confidential to such a degree that disclosure would not be in the interest of the public, in that disclosure would interfere with law enforcement investigations or judicial or administrative proceedings, deprive a person of the right to a fair trial or impartial adjudication, identify a confidential source or disclose confidential information relating to a criminal investigation or reveal criminal investigative techniques or procedures;
(f) Preliminary or interim communications related to the DCJS decision making process, including but not limited to opinions, interpretations and evaluations prepared by staff or consultants which are not:
(1) statistical or factual tabulations;
(2) instructions to staff that affect the public; or
(3) final agency policy or determinations;
(g) Record of deliberations of any public boards or committees while in executive session.]
Section [6150.5.] 6150.4 List of records. [On behalf of DCJS, the] The records access officer shall maintain and make available for public inspection and copying a reasonably detailed current list by subject matter of all records in the possession of DCJS, whether or not available under the Freedom of Information Law. [current list, by subject matter, of the types of records produced, filed, or first kept by DCJS whether or not available under this act. Such lists shall be in conformity with such regulations as may be promulgated by the State Committee on Public Access to Records.]
Section [6150.6] 6150.5. Procedures for obtaining access to records. [All requests for access to records maintained by DCJS, other than an itemized payroll record, shall be processed as follows.]
(a) [Place of request.] Any person wishing to inspect and/or [copy] obtain copies of any record [, other than a payroll record, may apply at one of the following locations:
(1) Albany. Records Access Officer, New York State Division of Criminal Justice Services, Executive Park Tower, Stuyvesant Plaza, 5th floor, Albany, N.Y. 12203.
(2) New York City. Records Access Officer, New York State Division of Criminal Justice Services, 80 Centre Street, 4th floor, New York, N.Y. 10013] shall submit a written request identifying the record requested with reasonable particularity via landmail, facsimile, or e-mail to:
Records Access Officer
NYS Division of Criminal Justice Services
4 Tower Place
Albany, NY 12203-3764
FAX: (518) 457-2416
E-mail: foil@dcjs.state.ny.us
(b) Within five business days of receipt of a request, the records access officer shall:
(1) make such record available to the person requesting it;
(2) deny such request in writing; or
(3) furnish a written acknowledgement of the receipt of such 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.
[Form of request. All requests for access shall be in writing on a form prescribed by the records access officer, identifying the record requested with reasonable particularity. Blank forms may be obtained from the records access officer either personally on any workday, or by mail addressed to such office.
(c) Processing of request. Completed forms may be submitted to the records access officer personally on any workday between the hours of 9:30 a.m. and 4 p.m. Upon receipt of such a request, on the proper form and at the appropriate time, the records access officer shall notify the applicant of one of the following results:
(1) that the record requested is available for inspection at a specified time and place;
(2) when requested, and upon payment of the appropriate fee as prescribed in section 6150.8 of this Part, that a copy of the record will be provided to the applicant;
(3) that the record requested is not in his custody, does not exist, is in the custody of another specified agency or has been lost; or
(4) that access to the record is denied as provided in section 6150.10 of this Part.
(d) Time for processing request. All requests shall be fully processed by the records access officer at the earliest possible time. In view of the time required to conduct record searches, locate and copy certain information, DCJS reserves the right to respond to inquiries or shall furnish a written acknowledgment of receipt of the request and a statement of the approximate date when the request will be granted or denied within five working days of receiving the request. If access to records is neither granted nor denied within 10 business days after the date of acknowledgment of receipt of a request, the record may be construed as a denial of access that may be appealed.
(e) Waiver of procedures. The records access officer may at his or her discretion waive any formality prescribed by this section, including the use of application forms prescribed by such officer.
Section 6150.7. Itemized payroll records. The fiscal officer of DCJS shall be the custodian of the itemized payroll records of DCJS. Any bona fide member of the news media wishing to inspect and/or obtain a copy of such itemized payroll record may apply to the fiscal officer by appearing in person on any workday between the hours of 9:30 a.m. and 3 p.m. at the DCJS Albany offices. Upon receipt of such an application at the appropriate time and on the proper form prescribed by the New York State Comptroller, and upon production by such member of appropriate identification, the fiscal officer shall produce the payroll record for inspection. Upon request, the fiscal officer shall provide the member with a copy of the payroll record.]
Section [6150.8] 6150.6. [Fee for copies of records] Fees. (a) [Except when a different fee is otherwise prescribed by law, there] There shall be no fee charged for the following:
(1) inspection of records;
(2) search for records; or
(3) any certification pursuant to section 89 of the Public Officers Law [this Part].
(b) The fee for photocopies of records shall be 25 cents per page not exceeding 9 by 14 inches in size or the actual cost of reproducing any other record, except when a different fee is otherwise prescribed by statute. [The fees for other types of copies shall be such amount as the commissioner shall establish which shall not exceed the actual reproduction cost.]
(c) Notwithstanding the above, the commissioner may, in his or her discretion, waive any or all portion of the fees authorized by this section for copies of any record or class of records.
Section [6150.9] 6150.7. Trade secrets and critical infrastructure information. A person acting pursuant to law or regulation who submits information to DCJS may request that DCJS except such information from disclosure on the grounds that such information constitutes trade secrets or disclosure would cause substantial injury to the competitive position of the subject enterprise which submitted the information. Such requests shall be submitted and determined in accordance with subdivision 5 of section 89 of the Public Officers Law. [Deletion of information. In accordance with the provisions of subdivision 2 of section 89 of the Public Officers Law, section 6150.4 of this Part, and in conformance with such guidelines as may be promulgated by the State Committee on Public Access to Records, prior to making a record available for public inspection and/or copying, the records access officer may delete from it any identifying details the disclosure of which would result in an unwarranted invasion of personal privacy. In the event that one or more deletions are so made, the records access officer shall give notice of that fact to the person given access to the record. If the record is such that the personal matters cannot be fully deleted without substantively affecting the record or the identifying details cannot be deleted effectively, the records access officer shall deny access to such record as provided in section 6150.10 of this Part.
Section 6150.10. Grant or denial of access to records. If the records access officer determines that an application to inspect and/or copy records pertains to information required to be disclosed under section 6150.3 of this Part and is not otherwise exempt from disclosure under section 6150.4 of this Part, he shall grant the application. If the records access officer determines that an application to inspect and/or copy records pertains to other information not exempt under section 6150.4 of this Part, he shall grant the application unless he determines that to do so would adversely affect the public interest. If the records access officer determines that an application to inspect and/or copy records pertains to information specifically exempt under section 6150.4 of this Part he shall deny such application. In denying an application, the records access officer shall indicate his reason for such denial and shall advise the applicant of his right to appeal such denial to the commissioner.]
Section [6150.11] 6150.8. Appeals. Any person [whose application to inspect and/or copy records has been denied pursuant to section 6150.10 of this Part] denied access to a record may appeal such denial within 30 days of such denial to: Deputy Commissioner and Counsel, Office of Legal Services, 4 Tower Place, Albany, NY 12203. [the commissioner at 80 Centre Street in New York City.] Such appeal must be in writing [on a form prescribed by DCJS] and shall set forth [:] the name and address of the applicant; the specified record(s) requested; the date of the denial; [the reasons given for the denial;] and other evidence the applicant deems pertinent. The [commissioner] Deputy Commissioner and Counsel shall, [upon receipt of a written appeal, immediately review the matter and affirm, modify or reverse the denial. If the commissioner affirms or modifies the denial he shall,] within [seven] ten business days of the receipt of the appeal [: (a) communicate his reasons for such affirmation or modification to the person making the appeal] either fully explain in writing to the person requesting the record the reasons for further denial or provide access to the records sought. [; and (b) inform such person of his right to appeal such affirmation or modification under article 78 of the Civil Practice Law and Rules.] Copies of all appeals and determinations of those appeals [will be transmitted] shall immediately be forwarded to the [State] Committee on [Public Access to Records] Open Government, Department of State, [162] One Commerce Plaza, 99 Washington Avenue, Albany, New York 12231.
Section [6150.12] 6150.9. Severability. If any provision of this Part or the application thereof to any person or circumstance is adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of this Part or the application thereof to other persons and circumstances.
Text of proposed rule and any required statements and analyses may be obtained from:
Mark Bonacquist, Division of Criminal Justice Services, 4 Tower Place, Albany, NY 12203, (518) 457-8413
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 proposal updates the Division’s procedures regarding the availability of records pursuant to the Freedom of Information Law (FOIL). The revisions made by the proposal are in conformity with the requirements of FOIL, and update the procedures for requesting records to conform with current practice. Accordingly, the Division believes this proposal implements non-discretionary provisions of the FOIL, makes technical changes, and is otherwise non-controversial. As such, no person is likely to object to the adoption of this rule as written.
Job Impact Statement
This proposal updates the Division's procedures regarding the availability of records pursuant to the Freedom of Information Law. As such, it is apparent from the nature and purpose of the proposal that it will have no impact on jobs and employment opportunities.
