PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of Part 2150 of Title 21 NYCRR. This rule was previously proposed as a consensus rule making under I.D. No. HFA-52-05-00002-P.
Statutory authority:
Public Officers Law, section 87(b)
Subject:
Public access to agency records.
Purpose:
To provide procedures by which records may be obtained from the agency.
Text of proposed rule:
Subdivision (a) of section 2150.1 is amended to read as follows:
(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.
Subdivision (b) of section 2150.1 is amended to read as follows:
(b) This Part provides information concerning the procedures by which records may be obtained from the Agency pursuant to the Freedom of Information Law.
Subdivision (a) of section 2150.2 is amended to read as follows:
(a) The [executive director] President and Chief Executive Officer is responsible for [insuring] ensuring compliance with this Part, and designates the following [persons] person(s) as records access [officers] officer(s):
[Associate Administrative Analyst] Public Information Officer
New York State Housing Finance Agency
641 Lexington Avenue [Three Park Avenue
33rd Floor]
New York, NY [10016] 10022
E-mail: FOILOfficer@nyhomes.org
Subdivision (b) of section 2150.2 is amended to read as follows:
(b) [Records] The records access [officers are] officer is responsible for ensuring appropriate agency response to public requests for access to records. The designation of records access officers shall not be construed to prohibit officials who have in the past been authorized to make records or information available to the public from continuing to do so. Records access officers shall [insure] ensure that personnel:
(1) maintain an up-to-date subject matter list;
(2) assist the requester in identifying [requested] records sought, if necessary[;], and when appropriate, indicate the manner in which records are filed, retrieved or generated to assist persons in reasonably describing records;
(3) contact persons seeking records when a request is voluminous or when locating sought records involves substantial effort, so that personnel may ascertain the nature of records of primary interest and attempt to reasonably reduce the volume of the records requested;
[(3)] (4) upon locating the records, take one of the following actions:
(i) make records available for inspection; or
(ii) deny access to the records in whole or in part, and explain in writing the reasons [therefor] for such denial;
[(4)] (5) upon request for copies of records, make a copy available upon payment or offer to pay established fees, if any, in accordance with section 2150.8 of this Part;
[:(i), make a copy available upon payment or offer to pay established fees, if any, in accordance with section 2150.8 of this Part [; or (ii) permit the requester to copy those records;]
(6) upon request, certify that a record is a true copy; and
(7) upon failure to locate records, certify that:
(i) the New York State Housing Finance Agency is not the custodian for such records; or
(ii) the records of which the New York State Housing Finance Agency is a custodian cannot be found after diligent search.
Section 2150.3 is amended to read as follows:
Section 2150.3 Location.
Records shall be available for [public] inspection and copying at [: Three Park Avenue, 33rd Floor, New York, NY 10016.] the offices of the New York State Housing Finance Agency, including its principal office at:
New York State Housing Finance Agency
641 Lexington Avenue
New York, New York 10022
Section 2150.4 is amended to read as follows:
Section 2150.4 Hours for public inspection.
[Requests for public access to records] Records of the Agency shall be [accepted and records] produced for inspection by appointment during all hours and days regularly open for business. These hours are: Monday through Friday, 9 a.m. to 5 p.m.
Section 2150.5 is amended to read as follows:
Section 2150.5 Requests for public access to records.
(a) A written request [may be] for records is required. [, but oral requests may be accepted when records are readily available.] Written requests must be received by mail or hand delivery to the offices of the Agency, or e-mail or facsimile transmission to the respective address or number then currently specified on the Agency's website. If a requested record is maintained on the internet, the Agency's response to the request shall inform the requester that the record is accessible via the internet and in printed form, either on paper or other information storage medium.
[(b) A response shall be given regarding any request reasonably describing the record or records sought within five business days of receipt of the request.]
[(c)] (b) A request [shall] should reasonably describe the record or records sought. Whenever possible, a person requesting records should supply information regarding dates, file designations or other information that may help to describe the records sought.
[(d) If the records access officer does not provide or deny access to the record sought within] (c) Within five business days of receipt of [a] the request, [he or she] the Agency shall:
[furnish] (i) inform the requester that their request, or a portion of their request, does not reasonably describe record(s) sought, and provide assistance and direction, to the extent possible, which shall assist the person making the request in reasonably describing such records;
(ii) grant or, in writing, deny access to the records requested in whole or in part;
(iii) provide a written [acknowledgment] acknowledgement of receipt of the request and [a statement of] state the approximate date, which shall be reasonable under the circumstances, and in no instance exceed twenty business days, when the request will be granted or denied [. If access to records]; or
(iv) if it is [neither granted nor denied within 10 business days after] known that circumstances will prevent disclosure of the record(s) within twenty (20) days from the date of [acknowledgment of receipt of a request, the request may be construed as a denial of access that may be appealed.] the acknowledgement, provide a written explanation for the inability to grant the request within such time frame, and state a date certain, which shall be reasonable under the circumstances, when the request will be granted in whole or in part.
If, after having acknowledged the receipt of a request and provided to a requester an approximate date when a request will be granted in whole or in part, it becomes known that circumstances will prevent the Agency from granting the request in the time specified, the Agency shall, within twenty business days of the initial acknowledgement, provide a statement in writing stating the reason for the inability to grant the request within such time frame, and state a date certain, which shall be reasonable under the circumstances, when the request will be granted in whole or in part.
(d) In determining a reasonable time for granting or denying a request under the circumstances of a request, personnel shall consider the volume of a request, the ease or difficulty in locating, retrieving or generating records, the complexity of the request, the need to review records to determine the extent to which they must be disclosed, the number of requests received by the Agency, and similar factors that bear on the ability to grant access to records promptly and within a reasonable time.
(e) The Agency's failure to comply with such time limits and procedures as are set forth in Section (c) of this Part, and/or the failure to respond to a request within a reasonable time after an approximate date given, in conformity with (c)(iii) of this Section, which response shall in no instance be provided in excess of twenty business days after the date of acknowledgement of the receipt of request, unless a written explanation for the inability to grant access to the records is provided, in conformity with (c)(iv) of this Section, shall constitute a denial of a request that may be appealed.
Subdivision (a) of section 2150.7 is amended to read as follows:
(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 individual or body established to hear appeals, identified by name, title, business address and business telephone number.
Subdivision (b) of section 2150.7 is amended to read as follows:
(b) [If requested records are not provided promptly] If the Agency fails to respond to a request as required in section 2150.5(c) and (d) of this Part, such failure shall also be deemed a denial of access.
Subdivisions (c), (d), (e), (f) and (g) of section 2150.7 are renumbered as (d), (e), (f), (g) and (h). New subdivision (c) shall read:
(c) Any person denied access to records may appeal within 30 days of a denial.
Subdivision (d) of section 2150.7 is amended to read as follows:
(d) The following person or persons or body shall hear appeals for denial of access to records under the Freedom of Information Law:
Senior Vice President and Counsel [,]
New York State Housing Finance Agency
[3 Park Avenue
33rd Floor
New York, NY 10016
(212) 736-4949]
641 Lexington Avenue
New York, NY 10022
Subdivision (e) of section 2150.7 is amended to read as follows:
(e) The time for deciding an appeal by the individual or body designated to hear appeals shall commence upon receipt of a written appeal, identifying:
(1) the date of the appeal;
(2) the date and location of the requests for records;
(3) a description, to the extent possible, of the records to which the requester was denied access;
(4) whether the denial of access was in writing or due to failure to provide records [promptly] as required by section 2150.5(c) or (d) of this Part; and
(5) the name and return address of the requester.
Subdivision (f) of section 2150.7 is amended to read as follows:
(f) [The individual or body designated to hear appeals shall inform the requester of its decision, in writing, within seven business days of receipt of an appeal.] A failure to 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 shall constitute a denial of the appeal.
Subdivision (g) of section 2150.7 is amended to read as follows:
(g) The person or body designated to hear appeals shall transmit to the Committee on [Public Access to Records] Open Government copies of all appeals upon receipt of appeals. Such copies shall be addressed to:
Committee on [Public Access to Records] Open Government
Department of State
[162 Washington Avenue] 41 State Street
Albany, [NY] New York 12231
Subdivision (h) of section 2150.7 is amended to read as follows:
(h) The person or body designated to hear appeals shall inform [the appellant and] the Committee on [Public Access to Records] Open Government of its determination in writing within [seven] ten business days of receipt of an appeal. The determination shall be transmitted to the Committee on [Public Access to Records] Open Government in the same manner as set forth in subdivision [f) of] (g) in this section.
Section 2150.8 is amended to read as follows:
Section 2150.8 Fees.
(a) There shall be no fee charged for the following:
(1) inspection of records;
(2) search for records; or
(3) any certification pursuant to this Part.
(b) The fee for photocopies not exceeding [8 ½] 9 by 14 inches is 25 cents per page. The fee for copies of records other than photocopies which are [8 ½] 9 by 14 inches or less in size shall be the actual copying cost, excluding fixed agency costs such as salaries.
Section 2150.9 is amended to read as follows:
Section 2150.9 Public notice.
[A notice containing the title or name and business address of the records access officers and appeals person or body, and the location where records can be seen or copied, shall be posted in a conspicuous location wherever records are kept and/or published in a local newspaper of general circulation.] The Agency shall post in a conspicuous location information regarding the name, title, business address and business telephone number of the records access officer(s) and appeals person or body; the location where records can be inspected and copied; and the right to appeal by any person denied access to a record. Such information shall also be made available by inquiry to the Agency's general telephone number.
Text of proposed rule and any required statements and analyses may be obtained from:
Jay M. Ticker, Housing Finance Agency, 641 Lexington Ave., New York, NY 10022, (212) 688-4000, email: jayt@nyhomes.org
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 Withdrawal Objection
Objection was received in the form of a letter to the State of New York Mortgage Agency (the “Agency”) from New York State Assembly members RoAnn Destito and Ruben Diaz, Jr. dated February 13, 2006. The Assembly members wrote that the Agency’s proposed rule contained provisions that were inconsistent with New York State Freedom of Information Law (“FOIL”) and the regulations of the Committee on Open Government, and that the inconsistencies could result in diminished access to Agency records.
Regulatory Impact Statement
1. Statutory Authority
The source of the State of New York Mortgage Agency's ("Agency") Statutory authority for the proposed rule is Public Officers Law, Section 87, which reads, in relevant part: "Access to agency records. 1. (a) Within sixty days after the effective date of this article, the governing body of each public corporation shall promulgate uniform rules and regulations for all agencies in such public corporation pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the administration of this article. (b) Each agency shall promulgate rules and regulations, in conformity with this article and applicable rules and regulations promulgated pursuant to the provisions of paragraph (a) of this subdivision, and pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the availability of records and procedures to be followed…" The objective of giving the Agency such responsibility is to ensure that the Agency has procedures in place that will guarantee that information used in Agency decision-making is accessible to the public, subject to certain exceptions detailed in the statute. The rule follows prescriptions relating to access to records set out in Section 89 subdivisions (4), (5), and (6) of this Public Officers Law.
2. Needs and Benefits
The proposed rule puts into place efficient procedures for providing the public with information they are entitled to pursuant to the Freedom of Information Law ("FOIL").
3. Costs
No substantial costs are associated with the rule either (i) to regulated persons or (ii) to the Agency, the State or Local Governments. Because it is obvious that no substantial costs will result from this rule-making, the Agency need not detail, as required in SAPA Section 202-a.3.(c)(iii) and (iv), the information, sources and methodology used to determine the projected costs of the rule.
4. Paperwork
The rule requires only minimal changes to the documentary requirements already incumbent upon the parties concerned.
5. Local Government Mandates
The rule-making does not impose any service, duty or responsibility upon any county, city, town, school district, fire district, or other special district.
6. Duplication
The Agency's rule is submitted pursuant to a requirement of New York State's Public Officers Law. The Agency is not aware of any duplication, overlap or conflict with any rules or legal requirements of the state or federal government.
7. Alternatives
In its rule-making, the Agency has sought to comply with the requirements of statutory and regulatory authority with regard to FOIL. Compliance with such statutes and regulations does not allow for significant alternatives to the rule the Agency has submitted.
8. Federal Standards
The rule exceeds federal standards only in those ways required by the statutory authority of Public Officers Law and the regulatory authority of the Committee on Open Government, as set forth in Title 21. Part 1401.1-10.
9. Compliance Schedule
The proposed rule will take effect as soon as possible under applicable law.
Regulatory Flexibility Analysis
The proposed rule does not impose any adverse economic impact, nor does it impose reporting, recordkeeping or other compliance requirements, on small businesses or local governments. Because the Agency’s finding is obvious, the Agency need not detail, as required in SAPA Section 202-b.3.(a), the reasons upon which the finding was made, including measures the Agency took to ascertain that the rule would not impose such compliance requirements or adverse economic impact.
Rural Area Flexibility Analysis
The proposed rule does not impose any adverse impact, nor does it impose reporting, recordkeeping or other compliance requirements on public or private entities in rural areas. Because the Agency’s finding is obvious, the Agency need not detail, as required in SAPA Section 202-c.3.(a), the reasons upon which the finding was made, including measures the agency took to ascertain that the rule would not impose such compliance requirements or adverse impact.
Job Impact Statement
The Agency has reviewed Section 201-a.2(a) of the State Administrative Procedures Act, which Section sets forth the conditions under which a Job Impact Statement (“JIS”) is required to be filed with a Notice of Proposed Rule Making. The Agency has determined that its rule will have no impact on jobs and employment opportunities. Because this determination is evident from the subject matter of the rule, no summary of the information and methodology underlying this determination is attached.
