S T A T E O F N E W Y O R K
________________________________________________________________________
3062
2023-2024 Regular Sessions
I N S E N A T E
January 27, 2023
___________
Introduced by Sens. KRUEGER, COMRIE, 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.
LBD07060-01-3
S. 3062 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 12
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].
12. "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.
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(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
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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
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(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.