PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Repeal of section 587.1; and addition of new section 587.1 to Title 9 NYCRR. This rule was previously proposed as a consensus rule making under I.D. No. APA-09-16-00005-P.
Statutory authority:
Executive Law, section 804(9); Public Officers Law, section 87
Subject:
Access to Agency Records.
Purpose:
To conform Adirondack Park Agency rules to the Public Officers Law and rules promulgated by the Committee on Open Government.
Public hearing(s) will be held at:
7:00 p.m., Nov. 15, 2016 at Adirondack Park Agency, 1133 Rte. 86, Ray Brook, NY; 11:00 a.m., Nov. 14, 2016 at Department of Environmental Conservation, 625 Broadway, Albany, NY.
Interpreter Service:
Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.
Accessibility:
All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.
Text of proposed rule:
Section 587.1 is repealed and a new section 587.1 is adopted to read as follows:
587.1 Access to agency records.
(a) Purpose. The agency shall provide access to records in conformance with the requirements and procedures set forth in Article 6 of the Public Officers Law, entitled "Freedom of Information Law,” and its implementing regulations in 21 NYCRR Part 1401. This section provides regulations specific to the agency’s responsibilities under those authorities. Additional information about the agency’s implementation of the Freedom of Information Law is on the agency’s website at www.apa.ny.gov.
(b) Records access officer. One or more designated project administrators shall be the agency’s records access officer(s) with the responsibilities set forth herein and in 21 NYCRR Part 1401. The business address for the records access officer is: Adirondack Park Agency, P.O. Box 99, Ray Brook, New York 12977, and the email address is: FOIL@apa.ny.gov. In the absence of the records access officer, any agency attorney except the counsel may be designated to serve in that capacity.
(c) Requests for access to records. Requests for access to records may be submitted to the agency in writing by email, mail or in person. Record request forms are available at the Adirondack Park Agency, 1133 NYS Route 86, Ray Brook, New York and on the agency’s website at www.apa.ny.gov. Oral requests for access to records may also be allowed, although the agency may require a written request. The agency shall respond to requests for access to records in conformance with 21 NYCRR Part 1401. The agency will provide requested records by email or mail, or make them available for inspection at the Adirondack Park Agency, 1133 NYS Route 86, Ray Brook, New York.
(d) Hours for public inspection. The agency shall accept requests for access to records and produce records during all regular business hours. Except on State holidays, or during weather or other emergencies, regular business hours are 8:30 a.m. to 5:00 p.m., Monday through Friday.
(e) Fees. (1) No fee will be charged for electronic copies of records; (2) Fees of 25 cents per page may be charged for photocopies of more than fifty pages of records not exceeding 9 by 14 inches in size; and (3) Other fees may be charged for the actual cost of reproducing records in accordance with 21 NYCRR Part 1401.
(f) Requests for exceptions from disclosure of records. Requests for exceptions from disclosure of records shall be governed by section 89(5) of the Freedom of Information Law. A person submitting records to the agency may identify information therein for which an exception from disclosure is requested pursuant to that section and shall specify the facts, in reasonable detail, supporting the request. The records access officer shall identify the person(s) within the agency who shall have custody and/or access to such information and the manner of safeguarding against unauthorized access to such information until fifteen days after the entitlement to such exception has been finally determined or such further time as ordered by a court of competent jurisdiction.
(g) Appeals. Appeals shall be governed by the Freedom of Information Law or 21 NYCRR Part 1401, as applicable. Any person denied access to records, or denied a requested exception from disclosure of records, in whole or in part, may appeal in writing to the agency’s counsel. The business address of the agency’s counsel is Adirondack Park Agency, P.O. Box 99, Ray Brook, New York 12977.
Text of proposed rule and any required statements and analyses may be obtained from:
Paul Van Cott, Associate Attorney, Adirondack Park Agency, PO Box 99, Ray Brook, New York 12977, (518) 891-4050, email: APARuleMaking@apa.ny.gov
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
Five days after the last scheduled public hearing.
Consensus Withdrawal Objection
The proposed rule responds to comments provided to Agency staff by three members of the New York State Assembly during the public comment period for proposed consensus rule I.D. No. APA-09-16-00005-P. Due to these comments, the proposed consensus rule is withdrawn in favor of a formal rulemaking process.
Staff had developed the original draft rule with input from the Committee on Open Government (COG). That agency complimented the brevity of staff’s draft rule and indicated that it met the substantive requirements of the Freedom of Information Law (FOIL).
The Agency proposed the draft as a consensus rule after obtaining constructive feedback and support on the rule from Adirondack local government and environmental representatives.
In their comment letter on the consensus rule, the Assembly members requested clarification of the different appeal processes applicable to denials of (1) requests for access to records and (2) requests for exceptions to disclosure. They also requested that a subdivision be added to the rule concerning fees applicable to FOIL requests. Finally, the Assembly members noted that the Agency’s existing rules are more open to oral requests for documents than the proposed consensus rule, and suggested that the Agency should offer additional opportunity for public comment on that aspect of the rule.
The proposed rule responds to the comments provided by the Assembly members. It still advances the goal of updating the Agency’s FOIL rules to eliminate requirements that duplicate those already set forth in FOIL and COG’s rules in 21 NYCRR Part 1401.
The proposed rule will make it easier for the Agency to keep its FOIL rules current in the future, while maintaining the Agency’s strong policy of openness and accessibility to the public.
Regulatory Impact Statement
1. Statutory authority:
The Adirondack Park Agency Act (APA Act), Executive Law Article 27, Section 804(9), authorizes the Agency "to adopt, amend and repeal...such rules and regulations...as it deems necessary to administer this article and to do any and all things necessary or convenient to carry out the purposes and policies of this article...." Pursuant to Article 6 of the Public Officers Law (Freedom of Information Law (“FOIL”)), APA is required to adopt regulations, in addition to statewide rules implementing FOIL promulgated by the Committee on Open Government (“COG”), necessary for APA’s implementation of FOIL.
2. Legislative objectives:
The goal of this rule making is to eliminate Agency FOIL rules that duplicate requirements and procedures of Article 6 of the Public Officers Law and COG’s FOIL rules in 21 NYCRR Part 1401.
3. Needs and benefits:
FOIL is set forth in Article 6 of the Public Officers Law (“POL”). The statute empowers the Committee on Open Government to adopt rules for the administration of FOIL, which it has done in 21 NYCRR Part 1401. Other agencies and local governments, including APA, are required by FOIL to adopt rules that conform to FOIL and the rules set forth in 21 NYCRR Part 1401.
As currently written, most of 9 NYCRR § 587.1 duplicates FOIL and/or COG’s rules, or no longer conforms with FOIL due to changes to the law that have occurred since 587.1 became effective in 1979. The proposed rules would ensure conformance with FOIL and COG’s rules without duplication of those requirements and procedures, by limiting Agency FOIL regulations to those specifically necessary for the Agency’s implementation of FOIL.
4. Costs:
There would be no costs associated with the proposed rules.
5. Paperwork:
There would be no increased paperwork associated with the proposed rules.
6. Local government mandates:
The proposed rules would not impose any responsibility on local governments.
7. Duplication:
The proposed rules would eliminate duplicative regulations.
8. Alternatives:
Alternatives to the proposed rules include updating existing APA FOIL rules to be consistent with all of the changes that have occurred to FOIL since 1979 or repealing and replacing the existing rules with uniform FOIL rules developed by COG. Both of these alternatives would duplicate rules in FOIL and/or 21 NYCRR Part 1401, requiring APA to continue to amend its regulations in the future to keep pace with amendments to FOIL and/or COG’s rules implementing FOIL.
9. Federal standards:
The proposed regulations would not involve any federal statutory authority or standards.
10. Compliance schedule:
The proposed regulations would apply prospectively, effective immediately upon approval and filing.
Regulatory Flexibility Analysis
The proposed rules would not impose additional reporting, record keeping or other compliance requirements on small businesses and local governments.
The proposed rules would eliminate Adirondack Park Agency FOIL rules that duplicate requirements and procedures of Article 6 of the Public Officers Law and the Committee on Open Government’s (COG) FOIL rules in 21 NYCRR Part 1401.
The proposed rules will only serve to improve the consistency of APA’s FOIL rules with FOIL and 21 NYCRR Part 1401 for the benefit of small businesses and local governments.
Accordingly, a Regulatory Flexibility Analysis is not required for the proposed rules.
Rural Area Flexibility Analysis
The proposed rules, applicable throughout the Adirondack Park, would have the same effect whether the area is considered rural or not. The proposed rules impose no additional reporting, record keeping or other compliance requirements on small businesses, or on public or private entities in rural areas. Instead, they would eliminate existing rules in favor of existing statewide rules implementing Article 6 of the Public Officers Law (“FOIL”) set forth at 21 NYCRR Part 1401. The Agency’s rules would only include additional regulations specific to its implementation of FOIL. This would ensure Adirondack Park Agency rules governing access to records conform to state law and rules regarding FOIL.
Accordingly, a Rural Area Flexibility Analysis is not required for the proposed rules.
Job Impact Statement
A job impact statement (JIS) is not submitted for these proposed rules because they are not expected to create any substantial adverse impact upon jobs and employment opportunities in the Adirondack Park.
The goal of this rule making is to eliminate Agency FOIL rules that duplicate requirements and procedures of Article 6 of the Public Officers Law and the Committee on Open Government’s (COG) FOIL rules in 21 NYCRR Part 1401. The proposed rules would ensure conformance with FOIL and COG’s rules without duplication of those requirements and procedures, by limiting Agency FOIL regulations to those specifically necessary for the Agency’s implementation of FOIL.
Section 201-a of SAPA defines job impact as a “change in the number of jobs and employment opportunities” attributable to the adoption of the rule. A “substantial adverse impact on jobs” is defined as “a decrease of more than 100 full-time annual jobs and employment opportunities.”
There will be no change in employment opportunities due to the proposed rules. The proposed rules will only serve to improve the consistency of APA’s FOIL rules with FOIL and 21 NYCRR Part 1401.
Accordingly, a JIS is not required for the proposed rules.
