NCC-21-10-00004-P Public Access to Canal Corporation Records
5/26/10 N.Y. St. Reg. NCC-21-10-00004-P
NEW YORK STATE REGISTER
VOLUME XXXII, ISSUE 21
May 26, 2010
RULE MAKING ACTIVITIES
NEW YORK STATE CANAL CORPORATION
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. NCC-21-10-00004-P
Public Access to Canal Corporation Records
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Addition of Part 157 to Title 21 NYCRR.
Statutory authority:
Public Authorities Law, section 382(7); Public Officers Law, sections 87 and 89
Subject:
Public Access to Canal Corporation Records.
Purpose:
To add Canal Corporation FOIL regulations, as required by Article 6 of the Public Officers Law.
Text of proposed rule:
Part 157 is added to Title 21 NYCRR to read as follows:
Public Access to Canal Corporation Records
Section 157.1 is added to read as follows:
§ 157.1 Records available for inspection and copying; fees
1. Subject Matter List.
The Canal Corporation will keep a reasonably detailed current list, by subject matter, of all records in the possession of the Canal Corporation, whether or not available under the Freedom of Information Law.
2. Availability of records.
The Canal Corporation shall produce its records for inspection by appointment during those days and hours that it is regularly open for business, as follows: Monday through Friday, between the hours of 8:30 a.m. and 4:30 p.m. (excluding observed holidays). Written requests for copies of records should be directed to the Canal Corporation's Records Access Officer at 200 Southern Boulevard, Albany, New York 12209.
3. Fees.
a. The fee for copies of records not exceeding 9 x 14 inches in size shall be 25 cents per page.
b. The fees for searching the records of the Canal Corporation for an accident report, for furnishing a copy of an accident report, and for furnishing a copy of an accident reconstruction report shall not exceed the fees charged by the division of state police pursuant to section sixty-six-a of the public officers law and/or by the department of motor vehicles pursuant to section two hundred two of the vehicle and traffic law; provided, however, that no fee shall be charged to any public officer, board or body, or volunteer fire company, for searches or copies of accident reports to be used for a public purpose.
c. Except when a different fee is otherwise prescribed by statute, the fee for a copy of any other record shall be the actual cost of reproducing such record, as determined by the Records Access Officer in accordance with Public Officers Law section 87.
d. The Canal Corporation Executive Director, or his or her designee may, at his or her discretion, waive all or any portion of the fees authorized by this subdivision.
Section 157.2 is added to read as follows:
§ 157.2 Rights of party denied access to records.
If access to a record is denied, such denial may be appealed to the Canal Corporation Executive Director, or his or her designee.
Text of proposed rule and any required statements and analyses may be obtained from:
Public Authorities Law section 382, subdivision 7(d) authorizes the Canal Corporation to "make and alter by-laws for its organization and internal management and make rules and regulations governing the use of its property and facilities..." Subdivision 1(b) of Public Officers Law (POL) section 87 provides "each agency shall promulgate rules and regulations" in conformity with the Freedom of Information Law, including "i. the times and places such records are available; ii. the persons from whom such records may be obtained, and iii. the fees for copies of records which shall not exceed twenty-five cents per photocopy not in excess of nine inches by fourteen inches, or the actual cost of reproducing any other record in accordance with the provisions of paragraph (c) of this subdivision, except when a different fee is otherwise prescribed by statute." Subdivision 2 of POL section 87 provides "each agency shall, in accordance with its published rules, make available for public inspection and copying all records..." Subdivision 3(c) of POL section 87 provides that an agency shall keep "a reasonably detailed current list by subject matter of all records in the possession of the agency, whether or not available" under the Freedom of Information Law. Subdivision 5(a) of POL section 87 provides "an agency shall provide records on the medium requested by a person, if the agency can reasonably make such copy or have such copy made by engaging an outside professional service." Subdivision 4(a) of POL section 89 provides "any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefore designated by such head, chief executive, or governing body…"
2. Legislative Objectives:
The addition of Part 157 to Title 21 NYCRR will allow the Canal Corporation to adopt its own FOIL regulations, as it is required to so pursuant to Public Officers Law section 87(1)(b). The Canal Corporation has been following the Thruway Authority FOIL regulations. These regulations would require the Canal Corporation to keep a reasonably detailed current list, by subject matter, of all records in its possession, provide the times and places where Canal Corporation records are available, provide whom written requests for records shall be made to and the street address where such requests must be sent and provide the fees charged for copies of records. It would also provide those who have been denied access to records with a right to appeal.
3. Needs and Benefits:
Despite the requirement in Public Officers Law section 87(1)(b) that provides "each agency shall promulgate rules and regulations" in conformity with the Freedom of Information Law, the Canal Corporation has never promulgated such regulations. These regulations would ensure Canal Corporation compliance with the Freedom of Information Law statutes contained in Article 6 of Public Officer's Law. As a result of these changes, the Corporation will be able to easily adjust its subject matter list of records so that it more accurately reflects current records. Also, individuals or entities who seek Corporation records will know the times and places where records are available and to whom a request for records shall be made.
4. Costs:
In accordance with Public Officers Law section 87(1)(b), those who seek copies of Canal Corporation records will be required to pay twenty-five cents per photocopy not in excess of nine inches by fourteen inches, or the actual cost of reproducing any other record, except when a different fee is otherwise prescribed by statute. Pursuant to Public Officers Law section 87(1)(c), the actual cost of reproducing a record includes an amount equal to the hourly salary attributed to the lowest paid agency employee who has the necessary skill required to prepare a copy of the requested record; the actual cost of the storage devices or media provided to the person making the request in complying with such request; and 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, if such service is used to prepare the copy. Preparing a copy shall not include search time or administrative costs, and no fee shall be charged unless at least two hours of agency employee time is needed to prepare a copy of the record requested. A person requesting a record shall be informed 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 an outside professional service would be retained to prepare a copy of the record.
The fees for searching the records of the Canal Corporation for an accident report, for furnishing a copy of an accident report, and for furnishing a copy of an accident reconstruction report shall not exceed the fees charged by the division of state police pursuant to section sixty-six-a of the public officers law and/or by the department of motor vehicles pursuant to section two hundred two of the vehicle and traffic law. No fee shall be charged to any public officer, board or body, or volunteer fire company, for searches or copies of accident reports to be used for a public purpose.
The Corporation will continue to have to pay the associated administrative fees, and employees or an outside professional service for preparing the records. The exact amount of costs will vary with the number and nature of FOIL requests. There are no new costs for implementing the regulations.
5. Local Government Mandates:
This rule imposes no program, service, duty or responsibility on local governments.
6. Paperwork:
No need for reporting requirements.
7. Duplication:
The Freedom of Information Law statutes, found in Article 6 of Public Officers Law, may duplicate, overlap, or conflict with this rule. To ensure compliance with the FOIL statutes, the Canal Corporation will regularly check for updates to the FOIL statutes and update its FOIL regulations if there is a conflict or if an additional provision needs to be inserted.
8. Alternatives:
None considered.
9. Federal Standards:
None.
10. Compliance Schedule:
No time is needed for regulated persons to comply with this rule.
Regulatory Flexibility Analysis
Based on the subject matter of this regulation, it will not impose any adverse economic impact on reporting, record keeping or other compliance requirements on small businesses or local governments. As such, a Regulatory Flexibility Analysis is not required.
Rural Area Flexibility Analysis
Based on its subject matter, this regulation does not impose any adverse impact on rural areas whether through reporting, record keeping or other compliance requirements on public or private entities in rural areas; as such, a Rural Area Flexibility Analysis is not required.
Job Impact Statement
Based on the nature and purpose of the proposed rule, it will not have a substantial adverse impact on jobs and employment opportunities. As such, a Job Impact Statement is not required.
