PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of sections 4600.5, 4600.7 and 4600.9 of Title 21 NYCRR.
Statutory authority:
Public Officers Law, sections 87 and 89
Subject:
Access to records.
Purpose:
To introduce consistency with state statutes.
Text of proposed rule:
Subdivision (d) of section 4600.5 is amended to read as follows:
Section 4600.5 Requests for public access to records.
(d) If the records access officer does not provide or deny access to the record sought within five business days of receipt of a request, he or she shall furnish a written acknowledgement of receipt of the request and a statement of the approximate date when the request will be granted or denied. If access to records is neither granted nor denied within [10] 20 business days after the date of acknowledgment of receipt of a request, the request may be construed as a denial of access that may be appealed. However, if the records officer determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within 20 business days from the date of the acknowledgement of receipt, the records access officer shall state, in writing, both the reason for the inability to grant the request within 20 business days and provide a date certain for the grant of request.
Section 4600.7 is amended to read as follows:
4600.7 Subject matter list.
(a) The records access officer shall maintain a reasonably detailed current list by subject matter of all records in [its] the agency's possession, whether or not records are available pursuant to subdivision two of section eighty-seven of the Public Officers Law.
(b) The subject matter list shall be sufficiently detailed to permit identification of the category of the record sought.
(c) The subject matter list shall be updated not less than [twice] once per year. The most recent update shall appear on the first page of the subject matter list.
(d) The board will post a current subject matter list on its website and such posting shall be linked to the website of the Committee of Open Government.
Section 4600.9 is amended to read as follows:
4600.9 Fees.
(a) There shall be no fee charged for
(1) inspection of records;
(2) search for records; or
(3) any certification pursuant to this Part.
(b) [Copies of records shall ordinarily be provided with charging a fee, except that if the request is financially burdensome to the board,] T [t]he board reserves the right to require reimbursement of the cost of preparing a copy[ing (excluding labor costs)]. Fees for copies of records shall not exceed twenty-five cents per photocopy not in excess of nine inches by fourteen inches, or the actual cost of reproducing the record. No additional fee will be charged unless at least two hours of board employee time is needed to prepare a copy of the record requested. A person requesting the record shall be informed of the estimated costs of preparing a copy of the record if more than two hours of the board employee's time is needed, or if an outside professional service will be needed to prepare a copy of the record. In determining the actual cost of reproducing a record, the board shall include only:
(1) an amount equal to the hourly salary attributed to the lowest paid board employee who has the necessary skill required to prepare a copy of the requested record;
(2) the actual cost of the storage devices or media provided to the person making the request in complying with such request; and,
(3) the actual cost to the board of engaging an outside professional service to prepare a copy of a record, but only when the board's information technology equipment is inadequate to prepare a copy, if such service is used.
Text of proposed rule and any required statements and analyses may be obtained from:
Laura Greco, Deputy General Counsel, Consumer Protection Board, 5 Empire State Plaza, Suite 2101, Albany, NY 12223, (518) 474-6175, email: laura.greco@consumer.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Subdivision 1(d) of section 553 of the Executive Law as amended by Chapter 691 of the Laws of 2003, titled Powers and duties of the Board and the Executive Director, grants general rulemaking authority to the Consumer Protection Board to implement other powers and duties by regulation and otherwise as prescribed by any provision of law. Sections 87 and 89 of the Public Officers Law, as amended by Chapter 223 of the Laws of 2008, gives the Board authority to prescribe rules and regulations to comply with the Freedom of Information Law.
2. LEGISLATIVE OBJECTIVES:
The proposed amendments carry out the intent of the Freedom of Information Law by providing technical changes that both clarify and conform the rules to current State law.
3. NEEDS AND BENEFITS:
The purpose of the proposed amendments is to clarify and conform the Board's access to records provisions with the new FOIL amendments, as well as to make the rules consistent with the time requirements set forth in the Public Officers Law. The amendments will benefit the public because they will be consistent with existing law. The amendments will also benefit the Board because the rule will enable it to charge a reasonable fee for the time to prepare copies, where the time to prepare a copy exceeds two hours of employee time or requires the hiring of an outside vendor.
4. COSTS:
(a) Costs to State government: There will be no additional costs to the Board.
(b) Costs to private parties: The amendment clarifies the circumstances in which the Board may charge parties for preparing copies.
(c) Costs to local governments: The proposed amendments will not impose any costs on local government.
5. PAPERWORK:
This regulation does not impose the need for additional paperwork.
6. DUPLICATION:
This regulation does not duplicate any existing New York State rule or statute.
7. ALTERNATIVE:
There is no alternative to amending these regulations.
8. LOCAL GOVERNMENT MANDATES:
The proposed amendments do not impose any program, service, duty, or responsibility upon local government.
9. FEDERAL STANDARDS:
There are no applicable federal standard.
10. COMPLIANCE SCHEDULE:
The effective date of the proposed regulations is upon the publication of the notice of adoption in the State Register.
Regulatory Flexibility Analysis
1. EFFECT OF RULE:
The proposed amendments will have no effect on local governments or small businesses and will not impose reporting, record-keeping or other compliance requirements on local governments or small businesses, except if the local government or small business makes a FOIL request that requires over two hours to prepare copies. This is anticipated to be rare, as most requests require little time to fulfill. However, in such a rare case, the business or local government will be charged an amount equal to the hourly salary attributable to the lowest paid Board employee who has the necessary skill required to prepare a copy of the requested record. The benefits of the proposed amendments include making the Board's rules consistent with state law.
2. COMPLIANCE REQUIREMENTS:
There are no additional reporting requirements to the Board.
3. PROFESSIONAL SERVICES:
Affected small businesses and local governments will not need to retain additional professional services to comply with the proposed amendments.
4. COMPLIANCE COSTS:
There are no expected compliance costs as the result of the amendments.
5. ECONOMIC & TECHNOLOGICAL FEASIBILITY:
The proposed amendments do not impose new technological changes.
6. MINIMIZING ADVERSE IMPACT:
There is no adverse impact to small businesses and local government.
7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION:
The proposed amendments have no unique features which would require the participation of small business or local government.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:
Regulated businesses covered by the proposed amendments do business in every county in the State. There are forty-four rural counties in New York State, which are defined in the Executive Law § 481 (7) as counties within the state having less than a population of two hundred thousand. The number of small businesses in the forty-four rural counties for the year 2005 is estimated by the Empire State Development Division for Small Businesses to be 264,295. The proposed amendments will not have an additional effect on small businesses located in rural areas.
2. REPORTING, RECORDKEEPING OR OTHER COMPLIANCE REQUIREMENTS:
The proposed amendments impose no new reporting requirements.
3. COSTS:
There will be no additional costs to rural areas.
4. MINIMIZING ADVERSE IMPACT:
The proposed amendments apply uniformly all those that request records from the Board under the Freedom of Information Law. The proposed amendments do not impose any additional burden on persons located in rural areas and the Board does not believe that the proposed amendments will have an adverse impact on rural areas.
5. RURAL AREA PARTICIPATION:
The proposed amendments have no unique features such that rural area participation was required. The Board will carefully consider any comments filed in response to this notice, and make changes to the extent necessary to reflect any impacts on rural areas.
Job Impact Statement
The proposed regulations should not have a substantial adverse impact defined as a decrease of 100 jobs (SAPA § 201-a (6)(c)). These amendments conform these regulations to existing state law. As it is evident from the nature of these amendments that they would not have an adverse impact on the number of jobs and employment opportunities, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required.
