Home » 2010 Issues » October 20, 2010 » HCR-19-10-00002-A Public Access to Records of the Division of Housing and Community Renewal (DHCR) Under the Freedom of Information Law (FOIL)
HCR-19-10-00002-A Public Access to Records of the Division of Housing and Community Renewal (DHCR) Under the Freedom of Information Law (FOIL)
10/20/10 N.Y. St. Reg. HCR-19-10-00002-A
NEW YORK STATE REGISTER
VOLUME XXXII, ISSUE 42
October 20, 2010
RULE MAKING ACTIVITIES
DIVISION OF HOUSING AND COMMUNITY RENEWAL
NOTICE OF ADOPTION
I.D No. HCR-19-10-00002-A
Filing No. 1022
Filing Date. Oct. 05, 2010
Effective Date. Oct. 20, 2010
Public Access to Records of the Division of Housing and Community Renewal (DHCR) Under the Freedom of Information Law (FOIL)
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Repeal of Part 2650 and addition of new Part 2650 to Title 9 NYCRR.
Statutory authority:
Public Housing Law, section 19 and Public Officers Law, section 87, et seq.
Subject:
Public access to records of the Division of Housing and Community Renewal (DHCR) under the Freedom of Information Law (FOIL).
Purpose:
To clarify DHCR's procedures for public access to records and to ensure that DHCR's regulations are consistent with FOIL.
Text of final rule:
Section 1: Part 2650 is repealed and a new Part 2650 is added to read as follows:
PART 2650PUBLIC ACCESS TO DIVISION RECORDS
Section 2650.1: Purpose
(a) These regulations provide information concerning the procedures by which records of the Division of Housing and Community Renewal (hereinafter "Division") may be obtained. These procedures are in compliance with Article 6 of the Public Officers Law, entitled "Freedom of Information Law."
(b) Division personnel shall furnish to the public the information and records required by the Freedom of Information Law, as well as records otherwise available by law.
(c) Any conflicts among laws governing public access to records shall be construed in favor of the widest possible availability of public records.
Section 2650.2: Records Access Officer
(a) The Division's Records Access Officer is responsible for ensuring appropriate responses to public requests for access to records. All references herein to Records Access Officer shall include his or her designees and shall not be construed to prohibit other Division employees, who are also authorized to make records available to the public, from doing so.
(b) The Division shall maintain a current list by subject matter of records and assist persons seeking records to identify the records sought, if necessary. This list shall be sufficiently detailed to permit identification of the category of the records sought and shall be posted on the Division's website. Additionally, the list shall be updated annually and the date of the most recent update shall be conspicuously indicated on the list.
Section 2650.3: Locations and hours for public access
(a) Records maintained by the Division's Office of Rent Administration are available for public inspection and copying, upon request and appointment, at the Division office located in Jamaica, New York. Requests for information and records can be made to that office by writing to:
Records Access Officer
Division of Housing and Community Renewal
Office of Rent Administration
Gertz Plaza
92-31 Union Hall Street
Jamaica, New York 11433
e-mail: ORAFOIL@nysdhcr.gov
(b) Records maintained by the Division's Office of Community Development and the Office of Community Renewal are available for public inspection and copying, upon request and appointment, at the Division office located in Albany, New York. Requests for information and records can be made to that office by writing to:
Records Access Officer
Division of Housing and Community Renewal
Hampton Plaza
38-40 State Street
Albany, New York 12207
e-mail: CDFOIL@nysdhcr.gov
(c) All other records maintained by the Division, including housing operation records, are available for public inspection and copying, upon request and appointment, at the Division office located at 25 Beaver Street, New York, New York. Requests for information and records can be made to that office by writing to:
Records Access Officer
Division of Housing and Community Renewal
25 Beaver Street - 7th Floor
New York, New York 10004
e-mail: FOIL@nysdhcr.gov
(d) The Records Access Officer may designate another location in which a requestor may review records.
(e) Requests for public access to records shall be accepted and records produced during all hours the Division is regularly open for business.
Section 2650.4: Requests for public access to records
(a) All requests shall be made in writing. Requests for records may be submitted by electronic mail.
(b) Requests shall reasonably describe the record sought. To the extent possible, the requestor shall supply identifying information that will assist the Division in locating the records sought. In the absence of such identification, the Division may seek clarification from the requestor, in order for the request to be considered.
(c) The Division shall be required to produce only records maintained by or for the Division at the time of the request, with the exception of documents that are exempt from disclosure pursuant to the Public Officers Law, or any other applicable law, regulation or order of a court of competent jurisdiction. The Records Access Officer shall provide, in writing, the reason for any such withholding.
(d) If records are maintained on the internet, the requester shall be informed that the records are accessible via the internet and in printed form either on paper or other information storage medium.
Section 2650.5: Responses to requests
(a) The Records Access Officer shall within five business days of receiving a request for documents:
1. grant access to the records, in whole or in part; or
2. deny the request, in whole or in part, and state the reason therefore; or
3. if the request does not clearly identify the records sought, seek additional information from the requestor; or
4. acknowledge receipt of the request and provide a statement of the reasonable approximate date when the request will be granted or denied. If the circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the Division shall state, in writing, the reason for the delay and provide a date certain when the request will be granted in whole or in part.
(b) The Division shall respond by electronic mail to requests submitted by such mail, to the extent practicable, unless a response in some other form is requested. The Division shall respond to all other written requests by electronic mail, if possible, upon request.
Section 2650.6: Fees
(a) No charge will be made to inspect a record, certify a record or to certify a denial of a request for a record and the reason therefore.
(b) A charge will be made of $0.25 cents per page for photocopying of pages that are not larger than 9 inches by 14 inches. There will no charge for the first five pages.
(c) Charges for materials or services other than paper shall be based on the actual cost to the Division.
(d) Payments for copy charges or charges for other materials or services shall be made by check or money order payable to "New York State Division of Housing and Community Renewal."
(e) The requestor shall be notified of the amount of the fee.
Section 2650.7: Denial of access to records
(a) Denial of access to records maintained by the Division's Office of Rent Administration shall be in writing, stating the reason therefore and advising the requestor of the right to appeal to:
Records Appeals Officer
Division of Housing and Community Renewal
Office of Rent Administration
Gertz Plaza
92-31 Union Hall Street
Jamaica, New York 11433
(b) Denial of access to all other records maintained by the Division shall be in writing, stating the reason therefore and advising the requestor of the right to appeal to:
Records Appeals Officer
Office of the General Counsel
Division of Housing and Community Renewal
25 Beaver Street - 7th Floor
New York, New York 10004
(c) When the Records Access Officer has denied a request for records in whole or in part, the requestor may, within thirty days of the date of such denial, appeal the denial to the Records Appeals Officer.
(d) The Division's failure to comply with the time limitations provided in section 2650.5 of this Part shall constitute a denial of access to records that may be appealed.
(e) The Records Appeals Officer will forward to the Committee on Open Government copies of all appeals upon receipt.
(f) The Records Appeals Officer will determine an appeal within ten business days of its receipt by granting access to the records sought or fully explaining the reasons for further denial in writing.
(g) The decision by the Records Appeals Officer will constitute a final determination of the Division, with respect to the request for records and a copy will be sent to the Committee on Open Government.
(h) A proceeding to review an adverse determination on appeal may be commenced, pursuant to Article 78 of the Civil Practice Laws and Rules.
Section 2650.8: Posted notice
The Division shall cause to be conspicuously displayed at each location where records are kept, a notice clearly indicating:
(a) the title and business address of the records access officers and appeals officers; and
(b) the location where records can be seen.
Section 2650.9: Trade Secret and Commercial Information Exceptions
(a) The Records Access Officer shall, pursuant to Article 6 of the Public Officers Law, deny a request for records or portions thereof that are trade secrets or are submitted to the Division by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise.
(b) Any party submitting records to the Division that seeks an exemption from disclosure on the ground stated in paragraph (a) shall:
1. submit a written request for an exemption from disclosure to the Records Access Officer;
2. submit the request at the time the records purportedly containing trade secret information or confidential commercial information are submitted to the Division; and
3. the party who seeks an exemption from disclosure shall:
(i) clearly identify the trade secret information or the confidential commercial information likely to cause substantial competitive injury;
(ii) include the name and title of an individual who may be contacted concerning the request; and
(iii) state reasons why the information is either a trade secret or confidential commercial information likely to cause substantial competitive injury if disclosed.
(c) With respect to information submitted as provided for in subdivision 5 of section 89 of the Public Officers Law, such information shall be excepted from disclosure and maintained by the Division apart from all other records until fifteen days after the entitlement to such exception has been finally determined or such further time as ordered by a court of competent jurisdiction. The Records Access Officer shall be responsible for the custody of such information. Each Division employee who has custody of such information shall take appropriate measures to safeguard such records and to protect against their unauthorized disclosure.
(d) Within seven business days of receipt of a request pursuant to paragraph (b) of this section, the Division shall issue a written determination granting or denying such exception and stating the reasons therefore. Copies of such determinations shall be served upon the person, if any, requesting the record, the person who requested the exception and the Committee on Open Government.
(e) A denial of an exception from disclosure may be appealed by the person submitting the information and a denial of access to the record may be appealed by the person requesting the record.
(f) Within seven business days of receipt of written notice denying the request, the person may fie a written appeal from the Division's determination with the Records Appeals Officer.
(g) The appeal shall be determined within ten business days of the receipt of the appeal. Written notice of the determination of such appeal shall be served upon the person, if any, requesting the record, the person who requested the exception and the Committee on Open Government. The notice shall contain a statement of the reasons for the determination.
(h) A proceeding to review a determination adverse to a person requesting an exception from disclosure pursuant to this subdivision may be commenced pursuant to Article 78 of the Civil Practice Law and Rules. Such proceeding must be commenced within fifteen days of the service of the written notice containing the adverse determination.
Section 2650.10: Severability
If any provision of these regulations or the application thereof to any person or circumstances is adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of these regulations or the application thereof to other persons and circumstances.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 2650.2(b), 2650.4(c), 2650.9(i) and (j).
Text of rule and any required statements and analyses may be obtained from:
Gary R. Connor, General Counsel, New York State Division of Housing and Community Renewal, 25 Beaver Street, 7th Floor, New York, New York 10004, (212) 480-6707, email: GConnor@nysdhcr.gov
Revised Regulatory Impact Statement
A revised Regulatory Impact Statement is not required because the minor nonsubstantial changes that were made to the proposed regulations did not change the accuracy of the previously published Regulatory Impact Statement.
Revised Regulatory Flexibility Analysis
A Regulatory Flexibility Analysis is still not required because only minor nonsubstantial changes were made to the previously published proposed regulations, and it is readily apparent that they will not impose any adverse economic impact, reporting, recordkeeping or other compliance requirements on small business or local governments.
Revised Rural Area Flexibility Analysis
A Rural Area Flexibility Analysis is still not required because only minor nonsubstantial changes were made to the previously published proposed regulations, and it is readily apparent that they will not impose any adverse impact or reporting, recordkeeping or other compliance requirements on public or private entities in rural areas.
Revised Job Impact Statement
A revised Job Impact Statement is still not required because only minor nonsubstantial changes were made to the rule as previously published, and it is readily apparent that they will have no impact on jobs and employment opportunities.
Assessment of Public Comment
The only comments received by the Division were from the New York State Committee on Open Government. The Committee suggested that a provision be added to section 2650.2(b) indicating that the Division’s subject matter list will be listed on the Division’s website. The Committee also recommended that section 2650.4(c) be revised to clarify that it is consistent with the definition of the term “record” provided in section 86(4) of the Freedom of Information Law. Additionally, the Committee pointed out that the provisions of sections 2650.9(i) and (j) may be unnecessary and recommended they be omitted. The Division found these three comments to be valid and revised the proposed regulations to reflect them.
