DOS-35-12-00005-P Will Require Local Government Agencies to Post Contact Information for Records Access Officers Online Where Practicable

8/29/12 N.Y. St. Reg. DOS-35-12-00005-P

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 35

August 29, 2012

RULE MAKING ACTIVITIES

DEPARTMENT OF STATE

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. DOS-35-12-00005-P

Will Require Local Government Agencies to Post Contact Information for Records Access Officers Online Where Practicable

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of section 1401.9 of Title 21 NYCRR.

Statutory authority:

Public Officer's Law, section 89(1)(b)(iii)

Subject:

Will require local government agencies to post contact information for records access officers online where practicable.

Purpose:

To make contact information for FOIL requests available online.

Text of proposed rule:

1401.9 Public notice.

Each agency shall publicize by posting in a conspicuous location and to the extent practicable, by posting on its website, and/or by publication in a local newspaper of general circulation:

(a) The locations where records shall be made available for inspection and copying.

(b) The name, title, business address and business telephone number of the designated records access officers.

(c) The right to appeal by any person denied access to a record and the name and business address of the person or body to whom an appeal is to be directed.

Text of proposed rule and any required statements and analyses may be obtained from:

Camille S. Jobin-Davis, NYS Committee on Open Government, 99 Washington Ave., Suite 650, Albany, NY 12231, [phone], email: [e-mail]

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: The Committee on Open Government's authority to propose and adopt the subject regulation is described in Public Officers's Law § 89(1), which sets forth as follows:

"(b) The committee shall:…

iii. promulgate rules and regulations with respect to the implementation of subdivision one and paragraph (c) of subdivision three of section eighty-seven of this article;…"

Subdivision one of § 87 references "general rules and regulations as may be promulgated by the committee on open government".

2. Legislative objectives: In keeping with the Legislature's efforts to ensure that public business be performed in an open and public manner, and yet not impose onerous requirements, in recent years the Legislature has amended Articles 6 and 7 of the Public Officer's Law ("POL") in a manner similar to the proposed regulatory change. In 2009, POL § 87(3)(c)was amended to require that up to date subject matter lists be posted on each state agency's website with accommodations for those agencies that do not maintain websites. That same year, POL § 104(5) was added, requiring notice of public meetings be posted on agency websites, at the state and local level "when a public body has the ability to do so." In 2012, POL § 103(e) was amended to require agencies at the state and local level to post records scheduled to be discussed at public meetings online, when practicable. These amendments were in keeping with what we believe to be a cultural shift to include relevant substantive information online when reasonable to do so. This regulation would require agencies to place contact information online, when practicable, in a manner similar to those outlined above.

3. Needs and benefits: In 2006, the Legislature added POL § 89(4)(b), to require that all agencies at the state and local level, "provided such entity has reasonable means available" receive and respond to requests via electronic mail, using forms, to the extent practicable, consistent with forms promulgated by the Committee on Open Government. Later, in 2008, the Legislature amended the statute to require each state agency that maintains a website, to post contact information for such requests online. The purpose of this regulation, therefore, is to make information about such requests available online at a local level, when practicable. The necessity for doing so is grounded in the statutory requirement that all agencies receive and respond to FOIL requests electronically, and the benefits derived from this statute include streamlining the public's ability to make requests for records without having to contact the agency by other means in order to obtain the appropriate email address.

4. Costs: Similar to the Legislature's amendment to POL § 103(e) in 2012, this proposed change may involve the expenditure of additional moneys to implement; however such cost will be nominal and, the proposal will actually decrease the burden imposed on agencies going forward. Making contact information available online, if it is not already, will only reduce the number of queries that the agency will be required to field for such information.

5. Local government mandates: The measure is only required "when practicable."

6. Paperwork: The proposal does not include a reporting requirement.

7. Duplication: There are no known duplicative requirements.

8. Alternatives: There are no significant alternatives to the proposal.

9. Federal standards: There are no minimum standards of the federal government for similar information.

10. Compliance schedule: There is no necessity that the requirement imposed by this proposal be completed within a certain period of time.

Regulatory Flexibility Analysis

Based on the qualified language of the proposal, “when practicable”, and the one-time effort involved in placing contact information online that the proposal would require, the proposed regulation will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirement on small businesses or local governments. In many instances, it is believed that local governments already have this or similar information available online.

Rural Area Flexibility Analysis

The regulation will not adversely impact local governments in rural areas, will not impose any additional reporting, recordkeeping or other compliance requirements on public or private entities in rural areas. The proposal would be required “when practicable” and involves a one-time effort to place contact information online; it will not impose any adverse economic impact.

Job Impact Statement

The one-time requirement to place contact information online “when practicable” will not have any impact on jobs or employment opportunities.