THR-21-10-00003-P Public Access to Authority Records
5/26/10 N.Y. St. Reg. THR-21-10-00003-P
NEW YORK STATE REGISTER
VOLUME XXXII, ISSUE 21
May 26, 2010
RULE MAKING ACTIVITIES
NEW YORK STATE THRUWAY AUTHORITY
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. THR-21-10-00003-P
Public Access to Authority Records
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of Part 108 of Title 21 NYCRR.
Statutory authority:
Public Authorities Law, sections 354(5) and 387; Public Officers Law, sections 87 and 89
Subject:
Public Access to Authority Records.
Purpose:
To bring the Thruway Authority's FOIL regulations into compliance with the updated FOIL statutes.
Text of proposed rule:
Section 108.1 is amended as follows:
§ 108.1 [Current List.] Records available for inspection and copying; fees
1. Subject Matter List
[The current list is a reasonably detailed list by subject matter of any records produced, filed, or first kept or promulgated and maintained by the Thruway Authority after September 1, 1974 and available for public inspection and copying, as set forth in this Part.] The Thruway Authority will keep a reasonably detailed current list, by subject matter, of all records in the possession of the Thruway Authority, whether or not available under the Freedom of Information Law.
Subdivision (2) is added to read as follows:
2. Availability of records.
The Thruway Authority 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 Thruway Authority Records Access Officer at 200 Southern Boulevard, Albany, New York 12209.
Subdivision (3) is added to read as follows:
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 Thruway Authority 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 Thruway Authority 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 108.2 is repealed and a new section 108.2 is adopted to read as follows:
§ 108.2 Rights of party denied copying; access to records
If access to a record is denied, such denial may be appealed to the Thruway Authority Executive Director, or his or her designee.
Section 108.3 is repealed.
Section 108.4 is repealed.
Text of proposed rule and any required statements and analyses may be obtained from:
Subdivision 5 of Public Authorities Law (PAL) section 354 authorizes the Thruway Authority to make "rules and regulations governing the use of the thruways and all other properties and facilities under its jurisdiction." PAL section 387 provides that "the fees for searching the records of the authority 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." 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 therefor designated by such head, chief executive, or governing body…"
2. Legislative Objectives:
The amendment of Part 108 of Title 21 of NYCRR will allow the Thruway Authority to update its Freedom of Information Law regulations, which were last updated in 1994, so as to comply with the most recent updates of Article 6 of the Public Officers Law, concerning Freedom of Information Law. Namely, it will remove the outdated subject matter list of records and replace it with the requirement that the Authority keep a detailed current list, by subject matter, of all records in its possession, clarify the times and places where Authority records are available, change the person to whom requests for records must be addressed, delete outdated provisions related to payroll records, update the provisions related to fees charged for copies of records so that it adequately reflects current law, and delete the list of exceptions to the FOIL disclosure requirement.
3. Needs and Benefits:
The Thruway Authority has not updated its regulations pertaining to the FOIL since 1994. Since that time, there have been numerous statutory changes in FOIL and the Authority's organization structure has been modified. The changes to Part 108 of Title 21 of NYCRR would allow the Authority's FOIL regulations to comply with Freedom of Information Law statutes effective as of the date of submission of this proposed rule.
As a result of these changes, the Authority 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 Authority records will know the times and places where records are available and to whom a request for records shall be made. The omission of the list of exceptions to the FOIL disclosure requirement will mean that the Authority will not have to update its FOIL regulations every time the oft-changed FOIL statutes are updated.
4. Costs:
In accordance with Public Officers Law section 87(1)(b), those who seek copies of Thruway Authority 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 Thruway Authority 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 Authority 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 changes.
5. Local Government Mandates:
This rule imposes no program, service, duty or responsibility on local governments.
6. Paperwork:
None.
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 Thruway Authority 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.
