OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. PKR-27-10-00005-P
Public Access to Records
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
This is a consensus rule making to repeal Part 461 and Appendix I-2; and add new Part 461 to Title 9 NYCRR.
Statutory authority:
Parks, Recreation and Historic Preservation Law, section 3-09(8); Public Officers Law, section 87(1)
Subject:
Public access to records.
Purpose:
To update the agency's Freedom of Information Law (FOIL) regulation.
Text of proposed rule:
Part 461 and Appendix I-2 are repealed and a new Part 461 is added as follows:
PUBLIC ACCESS TO RECORDS
Section 461.1 Statement of policy.
(a) The Legislature has provided for public access to government records under the Freedom of Information Law (FOIL) (Public Officers Law, article 6, sections 84-90).
(b) This Part outlines the procedures for obtaining records from the Office of Parks, Recreation and Historic Preservation (office or OPRHP) and personnel responsibilities for providing access to records.
(c) The contact information for the Records Access Officer is OPRHP, Empire State Plaza, Agency Building 1, Albany, NY 12238 or foil@oprhp.state.ny.us.
Section 461.2 Designation of the Records Access Officer and Records Appeals Officer.
(a) The commissioner of the office (commissioner) is responsible for administering the Freedom of Information Law and shall designate a Records Access Officer who may, in turn, designate Assistant Records Access Officers. The commissioner shall also designate a Records Appeals Officer.
Section 461.3 Subject matter list, location and time for inspection.
(a) Subject matter list: Categories of records and locations of regional offices are listed at http://www.nysparks.state.ny.us/inside-our-agency/foil-requests.aspx.
(b) Locations: (1) If access is granted records shall be available for inspection upon request and appointment during regular business hours at OPRHP's Albany office, Empire State Plaza, Agency Building 1, Albany, NY 12238. Alternatively, the Records Access Officer may make records available for inspection at a regional office or at the State Historic Preservation Office at Peebles Island Resource Center, Delaware Avenue, Cohoes, NY 12047, Telephone No. (518) 237-8643.
Section 461.4 Request for access to records.
(a) A request for access to records shall be addressed to the Records Access Officer, OPRHP, Empire State Plaza, Agency Building 1, Albany NY 12238 or foil@oprhp.state.ny.us.
(b) Within five business days after receiving a request that reasonably describes the records, the Records Access Officer shall respond in the medium requested by:
(1) informing the person requesting the records that the request or a portion of the request does not reasonably describe the records sought and including, if possible, directions enabling the person to request the records;
(2) granting or denying access to the records in whole or in part;
(3) acknowledging receipt of the request in writing and including an approximate date when the request will be granted or denied in whole or in part, which shall be reasonable under the circumstances of the request and not more that twenty business days after the date of the acknowledgment. However, if it is known that circumstances will prevent disclosing the records within twenty business days from the date of the acknowledgment, the Records Access Officer shall state in writing the reason for not being able to grant the request within this twenty-day time period and shall indicate a date certain within a reasonable time period beyond twenty days when the records will be granted or denied in whole or in part.
(c) In determining a reasonable time for granting or denying a request the Records Access Officer shall consider the volume of the request, the ease or difficulty in locating, retrieving or copying the records, the complexity of the request, the need to review records to determine the extent to which they must be disclosed or withheld pursuant to law, the number of requests received and similar factors that bear on the ability to grant or deny access to records within a reasonable time period.
(d) The Records Access Officer shall redact identifying details in records to prevent any possible unwarranted invasion of privacy as described in the Public Officers Law, article 6, sections 87(2)(b); 89(2)(b),(2-a); and 96. In addition, the Records Access Officer shall not disclose other details that are prohibited from disclosure under federal or State statutes, regulations, policies or privileges, or agreements between or among the State and another state or states or the United States.
(e) The Records Access Officer after receiving payment of the fee prescribed for copies of the requested documents shall provide copies, and shall provide certification of correctness of the copies upon request.
(f) The Records Access Officer shall certify if the records are not in the possession of this agency or they cannot be located after a diligent search.
Section 461.5 Information exempted or excluded from inspection, denial of access to records and appeal procedure.
(a) Exempted or excluded information. The Records Access Officer shall review requested records and deny access to records or delete identifying details that are exempted or excluded from public scrutiny by law.
(b) Denial of access. The Records Access Officer's denial of access shall be in writing and shall state the reason for the denial and advise the requester of the right to appeal within thirty days to the identified Records Appeals Officer.
(c) Appeal procedure. (1) The Records Appeals Officer shall hear and decide appeals from a denial of access. Appeals shall be made within thirty days of the denial of access and shall be addressed to: Records Appeals Officer, OPRHP, Empire State Plaza, Agency Building 1, Albany, NY 12238.
(2) Appeals from a denial of access shall be in writing and shall specify the:
(i) date and location of requests for records;
(ii) records to which the requester was denied access; and
(iii) name and return address of the requester.
(3) The Records Appeals Officer shall issue a decision within ten business days of receiving the appeal and shall transmit a copy of the appeal and decision to the Committee on Open Government, Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231.
(4) A final denial on appeal of access to a requested record under this subdivision shall be subject to court review as provided for in article 78 of the Civil Practice Law and Rules.
(d) Protection of trade secrets, critical infrastructure information, and records maintained for the regulation of commercial enterprise which if disclosed would cause substantial injury to the competitive position of the subject enterprise.
(1) Identification of records. Any entity submitting records to the office that may be excepted from disclosure pursuant to the Public Officers Law, shall file with the Records Access Officer a written request that those records not be disclosed. The request shall be filed at the time the records are submitted and shall identify the records or portions of records that the submitter believes should not be disclosed and shall indicate the bureau, region or unit of the office to which the records have been submitted.
(2) Custody of records.
(i) Information submitted as provided in this subdivision shall be kept in the custody of the director of the bureau, region or unit responsible for maintaining the records, and the director may designate other individuals within the office to inspect or copy the records.
(ii) The director shall maintain the records apart from all other records in a locked file cabinet or other secure place.
(iii) The Records Access Officer shall not disclose these records until at least fifteen business days after the entitlement to the exception has been finally determined by a court of competent jurisdiction.
(3) Determination of exception. On the initiative of the Records Access Officer, or upon the request of any person for a record excepted from disclosure pursuant to this subdivision, the Records Access Officer shall:
(i) inform the person who requested the exception of the intent to determine whether the exception should be granted or continued;
(ii) permit the person who requested the exception to submit a written statement indicating why the exception should be granted or continued within ten business days of receipt of notification;
(iii) within seven business days of the receipt of the written statement, or within seven business days of the period prescribed for submission of the statement, issue a written reasoned determination granting, continuing or terminating the exception;
(iv) serve copies of the determination upon the person, if any, requesting the record, the person who asked for the exception, and the Committee on Open Government.
(4) Appeal from determination. A denial of an exception from disclosure may be appealed by the person submitting the information and a denial of access to the record under this subdivision may be appealed by the person requesting the record as follows:
(i) Within seven business days of receipt of written notice denying the request for an exception or the request for access to the record, the person asking for the exception or the person requesting the record may appeal to the Records Appeals Officer.
(ii) The appeal shall be in writing and set forth: the name and address of the person asking for the exception or the person requesting the record; the date of the request for the exception or access; the specific record to which exception or access was denied; the reasons given for the denial; and whether the denial was issued or is considered to be a denial because of failure of the office to respond in a timely manner.
(iii) The appeal shall be determined within ten business days of the receipt of the appeal. Written notice of the determination shall be served upon the person, if any, requesting the record, the person who asked for the exception and the Committee on Open Government. The notice shall contain a statement of the reasons for the determination.
(5) A proceeding to review an adverse determination made under paragraph (4) of this subdivision may be commenced pursuant to article 78 of the Civil Practice Law and Rules.
(6) Nothing in this section shall be construed to deny any person access pursuant to the provisions of the Public Officers Law or these regulations to any record or part excepted from disclosure upon the written consent of the person who requested the exception.
Section 461.6 Fees for copies.
(a) No fee shall be charged for inspecting records.
(b) The following fees shall be charged for copying records except where a different fee is prescribed by statute:
(1) Paper copies (9 inches by 14 inches) shall be assessed at $.25/per side of each sheet of paper.
(2) All others copies shall be assessed at the actual cost of reproducing the record.
Text of proposed rule and any required statements and analyses may be obtained from:
Kathleen L. Martens, Associate Counsel, Office of Parks, Recreation and Historic Preservation, Empire State Plaza, Agency Building 1, Albany, NY 12238, (518) 486-2921, email: rulemaking@oprhp.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.
Consensus Rule Making Determination
No person is likely to object to adoption of this rule because it merely implements streamlines and updates procedures for public access to OPRHP records and implements non-discretionary statutory amendments to FOIL under SAPA Section 102(11).
Job Impact Statement
The existing public access to records rule at 9 NYCRR Part 461 does not affect jobs or employment opportunities and repeal and addition of a new Part 461 would not affect jobs or employment opportunities.
