S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3043
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 27, 2021
                                ___________
 
 Introduced  by  Sens.  KRUEGER,  COMRIE,  GAUGHRAN,  LIU, PARKER, RAMOS,
   SANDERS -- read twice and ordered printed,  and  when  printed  to  be
   committed to the Committee on Investigations and Government Operations
 
 AN  ACT  to amend the public officers law, the arts and cultural affairs
   law, the executive law and the legislative law,  in  relation  to  the
   retention  of  state  electronic  records;  to repeal subdivision 1 of
   section 88 of the public officers law, relating  to  rules  and  regu-
   lations  governing  access  to  state  legislative  records; to repeal
   section 5 of the executive law, relating to executive records; and  to
   repeal section 70-0113 of the environmental conservation law, relating
   to information confidentially disclosed by applicants
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Legislative intent. The legislature finds  that  procedures
 and  practice that promote transparency and accountability in the execu-
 tive and legislative branches serve the public  interest  and  encourage
 public  faith  in  government.  Government  policies which allow for the
 destruction of emails and  other  electronic  governmental  records  and
 exempt  the  legislature  from the Freedom of Information Law (FOIL) run
 counter to these principles of transparency and accountability.
   Computers and other electronic devices create many of the new  records
 we use today, most commonly via email. These records, although electron-
 ic  in  format, are the same as records produced in other formats. Elec-
 tronic records show how one  conducts  business,  makes  decisions,  and
 carries  out  the  people's  work.  They  are  evidence of decisions and
 actions.   Fundamental records management  principles  should  apply  to
 electronic records, as they apply to any record formats.
   The  executive branch has adopted a policy allowing automatic deletion
 of emails after 90 days, which has the potential to severely  limit  the
 public  availability  of  vital  information regarding the operations of
 agencies. The consequences of such a policy are illustrated  in  a  2015
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD05756-01-1

 S. 3043                             2
 
 judicial  proceeding  where  the  former Deputy Secretary for Gaming and
 Racing indicated he was "aghast" to find that emails  dating  from  2013
 relevant  to  the  case  had  been deleted. The deletion of these emails
 undermines  the ability of the plaintiff in the case to seek redress. An
 administration spokesman defended deletion of the emails on  the  ground
 they had not been the subject of a FOIL request.
   This  legislation  would  ensure  that under the guidance of the State
 Archives, agencies and legislative bodies must take a proactive approach
 to the preservation of electronic records.  It  would  establish  strict
 standards for permanent preservation of the records of policymakers, and
 prohibit deletion of emails from government officials for at least seven
 years.  It  is modeled on federal policies adopted after extensive study
 of appropriate practices for  handling  electronic  records.  The  state
 already  uses email management software that would enable implementation
 of such a policy at minimal cost.
   Moreover, the exemption of the legislature from presumption of  access
 in  the  Freedom  of  Information  Law  also undermines transparency and
 accountability. The public should have  access  to  the  same  types  of
 information  from  the  legislature  that it can already access from the
 Executive Branch and local government agencies through the FOIL process.
 Recent scandals involving individual legislators only highlight the need
 for increasing the availability  of  information  regarding  legislative
 records.  This  act  would establish the same standards for treating the
 Executive and Legislative branches  under  FOIL.  This  act  would  also
 extend  to the legislature the various exemptions from disclosure in the
 FOIL law, including  records  that  would  compromise  personal  privacy
 rights  or  that  are  related  to internal deliberations of the body or
 agency.
   § 2. Subdivision 3 of section 86 of the public officers law, as  added
 by  chapter 933 of the laws of 1977, is amended and a new subdivision 10
 is added to read as follows:
   3. "Agency" means any state or municipal  department,  board,  bureau,
 division,  commission,  committee, public authority, public corporation,
 council, office or other governmental entity performing  a  governmental
 or  proprietary function for the state or any one or more municipalities
 thereof, except the judiciary [or the state legislature].
   10. "ARCHIVES" MEANS ANY INSTITUTION AS DEFINED BY  SECTION  57.05  OF
 THE ARTS AND CULTURAL AFFAIRS LAW.
   §  3.  Subdivision  1  of  section  88  of  the public officers law is
 REPEALED.
   § 4. The public officers law is amended by adding a new  section  88-a
 to read as follows:
   §  88-A.  ELECTRONIC  RECORDS  RETENTION.  1.    EACH STATE AGENCY, AS
 DEFINED BY PARAGRAPH (B) OF SUBDIVISION FOUR OF SECTION EIGHTY-SEVEN  OF
 THE  PUBLIC  OFFICERS LAW, AND THE STATE LEGISLATURE IN CONJUNCTION WITH
 THE STATE ARCHIVES, SHALL PRESERVE ELECTRONIC RECORDS IN ACCORDANCE WITH
 THE PROVISIONS OF THIS SECTION.
   2. EACH AGENCY SHALL IDENTIFY THE ACCOUNTS OF POLICY MAKERS SUBJECT TO
 THE PROVISIONS OF THIS ARTICLE.  FOR THE PURPOSE OF THIS SECTION, "POLI-
 CY MAKER" MEANS ANY STATEWIDE ELECTED OFFICIAL, STATE OFFICER OR EMPLOY-
 EE, MEMBER OF  THE  LEGISLATURE,  OR  LEGISLATIVE  EMPLOYEE  SUBJECT  TO
 SECTION SEVENTY-THREE-A OF THE PUBLIC OFFICERS LAW.
   3.  (A) THE PROVISIONS OF THIS SECTION AND ARTICLE SIX OF THIS CHAPTER
 SHALL APPLY TO  ALL  EMAIL  ACCOUNTS  OF  ANY  POLICY  MAKER,  INCLUDING
 ACCOUNTS  MANAGED BY OTHER STAFF, INCLUDING, BUT NOT LIMITED TO PERSONAL
 ASSISTANTS, CONFIDENTIAL ASSISTANTS, OR ADMINISTRATIVE ASSISTANTS.

 S. 3043                             3
 
   (B) THE PROVISIONS OF THIS SECTION AND OF ARTICLE SIX OF THIS  CHAPTER
 SHALL APPLY TO ALL EMAIL ACCOUNTS OF ANY POLICY MAKER, REGARDLESS OF THE
 ADDRESS NAMES USED BY THE PUBLIC OFFICIAL FOR AGENCY BUSINESS.
   4.  ELECTRONIC  RECORDS  SHALL  BE  MAINTAINED  IN ACCORDANCE WITH THE
 FOLLOWING GENERAL RECORDS RETENTION SCHEDULE:
   (A) EMAIL AND OTHER ELECTRONIC  RECORDS  OF  POLICY  MAKERS.  AGENCIES
 SHALL  TRANSFER  DOCUMENTATION ADEQUATE TO IDENTIFY, SERVICE, AND INTER-
 PRET THE PERMANENT ELECTRONIC RECORDS, WHICH INCLUDES THE POSITION TITLE
 AND BEGIN AND END DATES FOR EACH EMAIL ACCOUNT CAPTURED IN THIS SUBDIVI-
 SION.  THE DISPOSITION OF ELECTRONIC RECORDS DESCRIBED IN THIS PARAGRAPH
 IS PERMANENT. SUCH ELECTRONIC RECORDS SHALL BE TRANSFERRED TO THE  STATE
 ARCHIVES  NO SOONER THAN FIFTEEN YEARS AFTER THE DATE OF THE CREATION OF
 THE ELECTRONIC RECORD AND NO LATER  THAN  TWENTY-FIVE  YEARS  AFTER  THE
 CREATION OF THE ELECTRONIC RECORD.
   (B)  EMAIL  AND  OTHER ELECTRONIC RECORDS OF OTHER OFFICIALS. AGENCIES
 SHALL TRANSFER DOCUMENTATION ADEQUATE TO IDENTIFY, SERVICE,  AND  INTER-
 PRET THE PERMANENT ELECTRONIC RECORDS, WHICH INCLUDES THE POSITION TITLE
 AND BEGIN AND END DATES FOR EACH EMAIL ACCOUNT CAPTURED IN THIS SUBDIVI-
 SION.  THE DISPOSITION OF ELECTRONIC RECORDS DESCRIBED IN THIS PARAGRAPH
 IS  TEMPORARY. SUCH ELECTRONIC RECORDS SHALL BE TRANSFERRED TO THE STATE
 ARCHIVES NO SOONER THAN SEVEN YEARS AFTER THE DATE OF  CREATION  OF  THE
 ELECTRONIC  RECORD,  PROVIDED, HOWEVER, THAT LONGER RETENTION IS AUTHOR-
 IZED IF REQUIRED FOR BUSINESS USE BY THE AGENCY.
   5. PRODUCTION OF ELECTRONIC RECORDS BY AGENCIES SHALL COMPLY WITH  THE
 FOLLOWING PROVISIONS:
   (A)  AGENCIES  SHALL  TRANSFER  TO  THE  STATE  ARCHIVES DOCUMENTATION
 ADEQUATE TO IDENTIFY, SERVICE, AND INTERPRET  THE  PERMANENT  ELECTRONIC
 RECORDS.
   (B)  DOCUMENTATION  FOR  DATA FILES AND DATA BASES MUST INCLUDE RECORD
 LAYOUTS, DATA ELEMENT DEFINITIONS, AND CODE  TRANSLATION  TABLES  (CODE-
 BOOKS) FOR CODED DATA. DATA ELEMENT DEFINITIONS, CODES USED TO REPRESENT
 DATA  VALUES,  AND  INTERPRETATIONS OF THESE CODES MUST MATCH THE ACTUAL
 FORMAT AND CODES AS TRANSFERRED.
   (C) DIGITAL GEOSPATIAL DATA FILES MUST INCLUDE THE DOCUMENTATION SPEC-
 IFIED IN PARAGRAPH (B) OF THIS SUBDIVISION. IN  ADDITION,  DOCUMENTATION
 FOR  DIGITAL GEOSPATIAL DATA FILES CAN INCLUDE METADATA THAT CONFORMS TO
 THE FEDERAL GEOGRAPHIC DATA COMMITTEE'S CONTENT  STANDARDS  FOR  DIGITAL
 GEOSPATIAL  METADATA, AS SPECIFIED IN EXECUTIVE ORDER 12906 OF APRIL 11,
 1994 (3 CFR, 1995 COMP., P. 882).
   (D) DOCUMENTATION FOR ELECTRONIC FILES  CONTAINING  TEXTUAL  DOCUMENTS
 WITH SGML TAGS MUST INCLUDE A TABLE FOR INTERPRETING THE SGML TAGS, WHEN
 APPROPRIATE.
   (E)  DOCUMENTATION  FOR THE FOLLOWING TYPES OF ELECTRONIC RECORDS MUST
 CONFORM TO FORMATS SPECIFIED IN NATIONAL ARCHIVES AND  RECORDS  ADMINIS-
 TRATION  BULLETIN  2014-04;  APPENDIX A: REVISED FORMAT GUIDANCE FOR THE
 TRANSFER OF  PERMANENT  ELECTRONIC  RECORDS.  TABLES  OF  FILE  FORMATS;
 PROVIDED, HOWEVER, THAT THE STATE ARCHIVE MAY APPROVE ADDITIONAL ACCEPT-
 ABLE FILE FORMATS:
   (I) EMAIL MESSAGES WITH ATTACHMENTS;
   (II) SCANNED IMAGES OF TEXTUAL RECORDS;
   (III) RECORDS IN PORTABLE DOCUMENT FORMAT (PDF);
   (IV) DIGITAL PHOTOGRAPHIC RECORDS; AND
   (V) WEB CONTENT RECORDS.
   6.  (A)  ANY  AGGRIEVED  PERSON  SHALL  HAVE  STANDING  TO ENFORCE THE
 PROVISIONS OF THIS SECTION BY THE COMMENCEMENT OF A PROCEEDING  PURSUANT
 TO  ARTICLE  SEVENTY-EIGHT  OF  THE  CIVIL PRACTICE LAW AND RULES, OR AN

 S. 3043                             4
 
 ACTION FOR DECLARATORY JUDGMENT  AND  INJUNCTIVE  RELIEF.  IN  ANY  SUCH
 ACTION  OR  PROCEEDING,  IF  A COURT DETERMINES THAT AN AGENCY FAILED TO
 COMPLY WITH THE PROVISIONS OF THIS SECTION, THE  COURT  SHALL  HAVE  THE
 POWER,  IN  ITS  DISCRETION,  UPON GOOD CAUSE SHOWN, TO DECLARE THAT THE
 AGENCY VIOLATED THE PROVISIONS OF THIS SECTION. IF THE COURT  DETERMINES
 THAT  AN  AGENCY  HAS VIOLATED THE PROVISIONS OF THIS SECTION, THE COURT
 MAY REQUIRE THE MEMBERS OF THE  AGENCY  TO  PARTICIPATE  IN  A  TRAINING
 SESSION  CONCERNING THE OBLIGATIONS IMPOSED BY THIS SECTION CONDUCTED BY
 THE STAFF OF THE STATE ARCHIVES.
   (B) IN ANY PROCEEDING BROUGHT PURSUANT  TO  THIS  SECTION,  COSTS  AND
 REASONABLE  ATTORNEY'S  FEES  MAY  BE  AWARDED  BY  THE  COURT,  IN  ITS
 DISCRETION, TO THE SUCCESSFUL PARTY. IF A COURT DETERMINES THAT AN ELEC-
 TRONIC RECORD WAS NOT RETAINED IN MATERIAL VIOLATION  OF  THIS  ARTICLE,
 THE  COURT  SHALL  AWARD  COSTS  AND  REASONABLE  ATTORNEY'S FEES TO THE
 SUCCESSFUL PETITIONER, UNLESS THERE WAS A REASONABLE BASIS FOR THE AGEN-
 CY TO BELIEVE THAT IT ACTED IN COMPLIANCE WITH THE  PROVISIONS  OF  THIS
 SECTION.
   (C)  THE STATUTE OF LIMITATIONS IN AN ARTICLE SEVENTY-EIGHT PROCEEDING
 WITH RESPECT TO AN ACTION TAKEN AT EXECUTIVE SESSION SHALL  COMMENCE  TO
 RUN FROM THE DATE THE ELECTRONIC RECORD AT ISSUE HAS BEEN MADE AVAILABLE
 TO THE PUBLIC.
   7.  NOTHING  IN  THIS  SECTION SHALL BAR AN EMPLOYEE OF AN AGENCY FROM
 MAINTAINING A RECORD SLATED FOR DESTRUCTION UNDER THE  RETENTION  SCHED-
 ULES  DEVELOPED  PURSUANT  TO  SECTION  57.06  OF  THE ARTS AND CULTURAL
 AFFAIRS LAW, IF SUCH RECORD IS RELEVANT TO AN ONGOING  MATTER  AND  SUCH
 DISCLOSURE WOULD NOT VIOLATE ANY PRIVILEGE OR CONFIDENTIALITY INTEREST.
   §  5.  Subparagraphs vii and viii of paragraph (b) of subdivision 2 of
 section 89 of the public officers law, as amended by section 2  of  part
 GGG  of  chapter  59 of the laws of 2019, are amended and a new subpara-
 graph ix is added to read as follows:
   vii. disclosure of electronic contact information, such as  an  e-mail
 address  or  a  social  network username, that has been collected from a
 taxpayer under section one hundred four of the real  property  tax  law;
 [or]
   viii.  disclosure  of law enforcement arrest or booking photographs of
 an individual, unless public release of such photographs  will  serve  a
 specific  law enforcement purpose and disclosure is not precluded by any
 state or federal laws[.]; AND
   IX. COMMUNICATIONS OF A PERSONAL NATURE BETWEEN STATE LEGISLATORS  AND
 THEIR CONSTITUENTS.
   §  6.  The  arts  and  cultural affairs law is amended by adding a new
 section 57.06 to read as follows:
   § 57.06. ELECTRONIC RECORDS RETENTION. 1.  THE  STATE  ARCHIVES  SHALL
 DEVELOP  AND  IMPLEMENT  A  PROTOCOL  FOR THE PRESERVATION OF ELECTRONIC
 RECORDS OF THE STATE IN ACCORDANCE WITH THE PROVISIONS OF THIS  ARTICLE.
 SUCH PROTOCOL SHALL INCLUDE:
   (A)  A  PROCESS BY WHICH SENDERS AND RECIPIENTS OF ELECTRONIC MAIL CAN
 CATEGORIZE SUCH MAIL INTO RECORDS THAT WILL BE RETAINED, AND THOSE  THAT
 WILL BE SUBJECT TO PROCEDURES FOR REGULAR DISPOSITION OF SUCH RECORDS IN
 THE ORDINARY COURSE OF BUSINESS;
   (B)  THE  DELINEATION OF SUCH OTHER STANDARDS OR PROCEDURES WHICH WILL
 ASSIST IN THE IDENTIFICATION AND PRESERVATION OF ELECTRONIC RECORDS;
   (C) THE IDENTIFICATION OF SOFTWARE AND OTHER TECHNOLOGICAL  AIDS  THAT
 WOULD  FACILITATE  RECORDS  PRESERVATION  AND  REVIEW,  AND WHICH MAY BE
 PURCHASED WITHIN AVAILABLE RESOURCES; AND

 S. 3043                             5

   (D) A SCHEDULE FOR RECORDS RETENTION FOR SPECIFIC TYPES OF RECORDS AND
 IDENTIFICATION OF HISTORICALLY IMPORTANT RECORDS  DEVELOPED  IN  CONCERT
 WITH THE AGENCIES PROVIDING THE ELECTRONIC RECORDS.
   2. NOTHING IN THIS SECTION SHALL BAR AN EMPLOYEE OF THE STATE ARCHIVES
 FROM  MAINTAINING  A  RECORD  SLATED FOR DESTRUCTION UNDER THE RETENTION
 SCHEDULE, OR FROM PROVIDING SUCH RECORD TO AN AGENCY, IF SUCH RECORD  IS
 RELEVANT TO AN ONGOING MATTER, AND SUCH DISCLOSURE WOULD NOT VIOLATE ANY
 PRIVILEGE OR CONFIDENTIALITY INTEREST.
   § 7. Section 5 of the executive law is REPEALED.
   §  8. Subdivision 3 of section 713 of the executive law, as amended by
 section 16 of part B of chapter 56 of the laws of 2010,  is  amended  to
 read as follows:
   3.  Any reports prepared pursuant to this article shall not be subject
 to disclosure pursuant to [section  eighty-eight]  ARTICLE  SIX  of  the
 public officers law.
   §  9.  The  legislative law is amended by adding a new section 33-a to
 read as follows:
   § 33-A. DISCLOSURE. ALL MEMBERS, OFFICERS AND EMPLOYEES OF THE  SENATE
 AND  THE  ASSEMBLY  SHALL BE SUBJECT TO THE PROVISIONS OF ARTICLE SIX OF
 THE PUBLIC OFFICERS LAW.
   § 10.  Section  70-0113  of  the  environmental  conservation  law  is
 REPEALED.
   §  11.  This  act  shall  take effect on the one hundred twentieth day
 after it shall have become a law.