EDU-39-07-00022-P Local Government Records Management

9/26/07 N.Y. St. Reg. EDU-39-07-00022-P

NEW YORK STATE REGISTER

VOLUME XXIX, ISSUE 39

September 26, 2007

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-39-07-00022-P

Local Government Records Management

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

Proposed action:

Amendment of sections 185.1, 185.2, 185.3, 185.5, 185.6, 185.7, 185.8, 185.9 and 185.10 of Title 8 NYCRR.

Statutory authority:

Education Law, section 207 (not subdivided); and Arts and Cultural Affairs Law, section 57.23(3)

Subject:

Local government records management.

Purpose:

To revise and clarify various provisions of Part 185 of Title 8 NYCRR, especially those pertaining to replacing original records with microforms or digital images, the retention and preservation of electronic records, and the use of alternative records disposition schedules.

Substance of proposed rule (Full text is not posted on a State website):

The State Education Department proposes to amend sections 185.1, 185.2, 185.3, 185.5, 185.6, 185.7, 185.8, 185.9 and 185.10 of the Regulations of the Commissioner of Education, effective January 3, 2008, which establish requirements for local government records management, to revise and clarify various provisions of the Part, especially those pertaining to replacing original records with microforms or digital images, the retention and preservation of electronic records, and the use of alternative records disposition schedules. The following significant changes have been proposed:

Section 185.1. Definitions used in the Part are revised.

Section 185.2. Procedures for notifying the Commissioner of new records management officers are revised, including removing the current requirement that notifications be in writing.

Section 185.3. The number of members of the Local Government Records Advisory Council is increased from 25 to 27 and the criteria for selecting such members are broadened. The Commissioner of the New York City Department of Records, a representative of the chief administrative judge, and the New York City Clerk are designated as permanent members of the Council. The number of required annual meetings of the Local Government Records Advisory Council is decreased from four to three.

Section 185.5. The current provision enabling a special purpose unit of local government located in a city with a population of one million or more to adopt and use its own records disposition schedule with approval of the Commissioner of Education is broadened to enable any local government in New York to adopt and use its own records disposition schedule or schedule items with approval of the Commissioner. Such a schedule or schedule items can be used in lieu of or in addition to a schedule issued by the Commissioner.

Section 185.6. The current provision through which a local government can obtain the Commissioner's approval to destroy records damaged by a natural or manmade disaster is broadened to cover situations where the damaged records constitute a risk to human health or safety.

Section 185.7. Requirements for replacing original records with microforms or electronic images are revised based on current industry standards. The provision which authorizes digital images of public records with a retention period of less than 10 years to replace paper originals or micrographic copies is broadened to cover digital images of all public records regardless of their retention period.

Section 185.8. Requirements for the retention and preservation of electronic records are revised based on current industry standards.

Section 185.9. The requirement that contracts for the storage of local government records in facilities other than those owned or maintained by the local government meet criteria established by the Commissioner is broadened to cover any agreement, contractual or otherwise, for such storage and to require that these agreements must be specifically approved by the Commissioner.

Section 185.10. Requirements for local government records management improvement grants are revised to eliminate the requirement that a copy of archival records that are reformatted through such grants must be deposited with the State Archives.

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

Anne Marie Koschnick, Legal Assistant, Office of Counsel, Education Department, State Education Bldg., Rm. 148, Albany, NY 12234, [phone], e-mail: [e-mail]

Data, views or arguments may be submitted to:

Jeffrey Cannell, Deputy Commissioner, Education Department, Office of Cultural Education, Cultural Education Center, Rm. 10A33, Albany, NY 12230, [phone], e-mail: [e-mail]

Public comment will be received until:

60 days after publication of this notice.

Regulatory Impact Statement

STATUTORY AUTHORITY:

General rule making authority for the Board of Regents and the Commissioner of Education is granted by Education Law section 207. Article 57-A of the Arts and Cultural Affairs Law provides for the systematic management of local government records. Arts and Cultural Affairs Law section 57.23(3) authorizes the Commissioner of Education to promulgate regulations to implement the provisions of Article 57-A with advice from the New York State Local Government Records Advisory Council.

LEGISLATIVE OBJECTIVES:

The proposed amendment carries out the intent of the statutes by updating and clarifying various provisions of Part 185 of the Regulations of the Commissioner of Education, especially provisions relating to replacing original records with microforms or digital images, the retention and preservation of electronic records, and the use of alternative records disposition schedules.

NEEDS AND BENEFITS:

The proposed amendment updates and clarifies various provisions of Part 185. In particular, revisions to section 185.5 enable local governments in New York to use records disposition schedules or schedule items in lieu of or in addition to schedules issued by the Commissioner, provided that approval of the Commissioner to such schedules or schedule items is obtained. Revisions to section 185.7 clarify and modernize requirements for replacing original records with microforms or digital images. Revisions to section 185.8 clarify and modernize requirements for the retention and preservation of electronic records. These changes establish improved and uniform standards that local governments can follow in their records management operations.

The proposed amendment has been recommended by the State Education Department after consultation with and review by the New York State Local Government Records Advisory Council.

COSTS:

(a) Costs to the State: None, other than those inherent in Article 57-A of the Arts and Cultural Affairs Law.

(b) Costs to local governments: None. The proposed amendments to Part 185 will modernize and clarify various requirements, but will impose no costs on local governments other than those inherent in Article 57-A of the Arts and Cultural Affairs Law.

(c) Costs to private, regulated parties: None.

(d) Costs to agency for implementation and continued administration of the rule: None, other than those inherent in Article 57-A of the Arts and Cultural Affairs Law.

LOCAL GOVERNMENT MANDATES:

Local governments are required to follow records management requirements of Part 185 of the Regulations of the Commissioner of Education. The amendments to Part 185 modernize and clarify those requirements but do not impose any additional program, service, duty or responsibility on local governments.

PAPERWORK:

The proposed amendment imposes no added paperwork requirements on local governments.

DUPLICATION:

The proposed amendment duplicates no existing state or federal requirements for local government records.

ALTERNATIVES:

There are no significant alternatives to the issuance of these requirements for local government records management and none were considered.

FEDERAL STANDARDS:

The proposed amendment is promulgated pursuant to the specific requirements of Article 57-A of the Arts and Cultural Affairs Law. The federal government has issued no records management standards specifically intended for use by local governments of New York.

COMPLIANCE SCHEDULE:

It is anticipated that local governments will be able to immediately comply with the proposed amendment upon its effective date.

Regulatory Flexibility Analysis

(a) Small Businesses:

The proposed amendment relates solely to local government records management and does not impose any reporting, recordkeeping or other compliance requirements on small businesses, nor will it impose any adverse economic impact on them. Because it is evident from the nature of the proposed amendment that it will not affect small businesses, no further steps were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one was not prepared.

(b) Local Government:

EFFECT OF RULE:

The proposed amendment will affect all local governments in New York that are subject to the records management requirements of the Commissioner of Education. The amendment revises and clarifies various requirements, including those concerning replacing paper records with microforms or digital images, the retention and preservation of electronic records, and the use of alternative records disposition schedules.

COMPLIANCE REQUIREMENTS:

Local governments in New York are currently required to comply with records management requirements of the Commissioner of Education. The amendments to Part 185 impose no new compliance requirements but instead modernize and clarify those requirements now in place.

PROFESSIONAL SERVICES:

The proposed amendment proposes no additional professional services requirements on local governments other than those already required by law.

COMPLIANCE COSTS:

The proposed amendments to Part 185 will modernize and clarify various requirements, but will not impose any compliance costs on local governments other than those inherent in Article 57-A of the Arts and Cultural Affairs Law.

ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment includes revisions to standards for replacing original records with microforms or digital images and for retaining and preserving electronic records and is technologically feasible. Economic feasibility is addressed under the Compliance Costs section set forth above.

MINIMIZING ADVERSE IMPACT:

Local governments in New York are currently required to comply with records management requirements of the Commissioner of Education. The proposed amendments to Part 185 impose no new compliance requirements or additional costs but instead modernize and clarify those requirements now in place, including those concerning replacing paper records with microforms or digital images, the retention and preservation of electronic records, and the use of alternative records disposition schedules.

LOCAL GOVERNMENT PARTICIPATION:

The proposed amendment was reviewed and approved by the Local Government Records Advisory Council, established by State law to advise the Commissioner of Education on records management matters.

Rural Area Flexibility Analysis

TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed amendment will apply to all municipalities and miscellaneous local governments in New York State, including the 44 rural counties with less than 200,000 inhabitants and the urban counties with a population density of 150 per square mile or less.

REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS AND PROFESSIONAL SERVICES:

The proposed amendment revises and clarifies the records management requirements of the Commissioner of Education. These compliance requirements are already in place and affected local governments are now required to follow the current requirements of the Commissioner. The proposed amendment proposes no additional professional services requirements on local governments, other than those already required by law.

COMPLIANCE COSTS:

The proposed amendments to Part 185 will modernize and clarify various requirements, but will not impose any compliance costs on local governments other than those inherent in Article 57-A of the Arts and Cultural Affairs Law.

MINIMIZING ADVERSE IMPACT:

The proposed amendment will have no adverse impact on municipalities and miscellaneous local governments in rural areas or elsewhere in New York State. Local governments in New York are currently required to comply with records management requirements of the Commissioner of Education. The proposed amendments to Part 185 impose no new compliance requirements or additional costs but instead modernize and clarify those requirements now in place, including those concerning replacing paper records with microforms or digital images, the retention and preservation of electronic records, and the use of alternative records disposition schedules.

RURAL AREA PARTICIPATION:

The proposed amendment was reviewed and approved by the Local Government Records Advisory Council, established by State law to advise the Commissioner of Education on records management matters, and which includes members from rural areas.

Job Impact Statement

The proposed amendment relates solely to local government records management and will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the proposed amendment that it will have no impact on jobs or employment opportunities, no further measures were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.