N.Y. Comp. Codes R. & Regs. Tit. 9 § 13.2 - Regulation Two: Freedom of information. [*]

In accordance with the provisions of section eighty eight of the Public Officers Law, I, Malcolm Wilson, Governor of the State of New York, do hereby promulgate the following regulation:

REGULATION TWO

Freedom of Information

Section 1. Purpose.

2. Definitions.

3. Custodian of records; designation of records access officer.

4. Procedure for obtaining records.

5. List of records.

6. Fees.

7. Prevention of invasions of privacy.

8. Grant or denial of access to records.

9. Appeals.

10. Effective date.

11. Repeal of regulation.

Section 1. Purpose. The purpose of this regulation is to set forth the methods and procedures governing the availability, location and nature of those records of the Executive Chamber subject to the provisions of article 6 of the Public Officers Law, known as the Freedom of Information Law.

§ 2. Definitions. For the purposes of this regulation:

(a) The term Executive Chamber means the Office of the Governor, including the offices of the secretary, counsel, appointments officer and press secretary to the Governor, the Office of Education Performance Review, the Women's Unit and such other offices or commissions as may have been or may be created, from time to time, in the Office of the Governor by executive order or otherwise, but not including the Emergency Fuel Office.

(b) The term record or records means any file memorandum document or other writing constituting:

(i) final opinions and orders made in the adjudication of cases;

(ii) statements of policy and interpretations which have been adopted by the Executive Chamber and any statistical or factual tabulations which led to the formulation thereof;

(iii) minutes of public hearings held by the Executive Chamber;

(iv) internal or external audits and statistical or factual tabulations made by or for the Executive Chamber;

(v) administrative staff manuals and instructions to staff that affect members of the public;

(vi) the payroll record; and

(vii) any other files, records, papers or documents required by any provision of law to be made available for public inspection.

As used in this subdivision, the term statistical tabulation means a collection or orderly presentation of numerical data logically arranged in columns and rows or graphically and the term factual tabulation means a collection of statements of objective information logically arranged and reflecting objective reality, actual existence, or an actual occurrence. Opinions, policy options and recommendations do not constitute statistical or factual tabulations.

(c) The term payroll record means an itemized record setting forth the name, business address, title and salary of every officer and employee of the Executive Chamber.

(d) The term workday means any day except Saturday, Sunday, a public holiday or a day on which the State Capitol is otherwise closed for general business.

(e) The term secretary means the secretary to the Governor and, except as used in the first sentence of subdivision (a) of section three of this regulation, any of the secretary's deputies designated by him to perform any or all of his functions hereunder.

(f) The term counsel means the counsel to the Governor and any of his assistants designated by him to perform any or all of his functions hereunder.

(g) The term fiscal officer means the officer or employee of the Executive Chamber responsible for certifying the Executive Chamber payroll.

§ 3. Procedure for obtaining records.

(a) The secretary to the Governor shall be the custodian of the records of the Executive Chamber, other than the payroll record. Any person wishing to inspect and/or obtain a copy of any such record, other than a payroll record, may make application to the secretary. Such application shall be in writing on a form to be prescribed by the secretary. Blank forms may be obtained from the secretary either personally on any workday at the Office of the Secretary at the State Capitol in Albany or by mail, addressed to such office. Completed forms may be submitted to the secretary either personally at such office on any workday between the hours of 9:00 a.m. and 4:00 p.m. or by mail, addressed to such office or to such other office as the secretary may specify on the application form. Upon receipt of such an application, in the proper form and at the appropriate time, the secretary shall search for the record requested. If the secretary determines that the record requested is not in his custody, the secretary shall advise the applicant, as the case may be, (i) that the record does not exist, (ii) that the record is in the custody of another specified agency, or (iii) that the record was in his custody but has been lost. If the secretary determines that the record requested is in his custody, the secretary shall either (i) produce the record for inspection at his office (and, if so requested and upon payment of the appropriate fee, shall make and certify a copy of the record), (ii) advise the applicant that the record is in his custody and make arrangements for inspection and/or copying at a later time, or (iii) deny access to the record as provided in section seven of this Regulation. The secretary, in his discretion, may waive compliance with any formality prescribed by this subdivision, including the use of application forms prescribed by the secretary.

(b) The Fiscal Officer shall be the custodian of the payroll record of the Executive Chamber. Any bona fide member of the news media wishing to inspect and/or obtain a copy of such payroll record may make application to the Fiscal Officer in writing on forms prescribed by the Comptroller. Application to inspect and/or obtain a copy of such payroll record shall be made to the Fiscal Officer by the member personally on any workday during regular working hours at the office of the Fiscal Officer at the State Capitol in Albany, or such other place as he may direct. Upon receipt of such an application, in the proper form and at the appropriate time, and upon production by such member of appropriate identification, the Fiscal Officer shall search for and produce for inspection the payroll record. If the member requests a copy of such payroll record, the Fiscal Officer shall provide him with one.

§ 4. List of records. On behalf of the Executive Chamber, the secretary shall maintain and make available for inspection and copying at his office a current list, reasonably detailed by subject matter, of the types of records produced, filed or first kept in the Executive Chamber on and after September 1, 1974. Such list shall be in conformity with such regulations as may be promulgated by the Committee on Public Access to Records. Any person desiring a copy of such list may request a copy thereof personally or by mail and one shall be supplied to him.

§ 5. Fees. The fee for photocopies of records shall be 10 cents per page not exceeding nine inches by fifteen inches in size. The fees for other types of copies or transcripts and for certifications shall be such reasonable amounts as the secretary shall establish. Notwithstanding the above, the secretary may, in his discretion, waive all or any portion of the fees authorized by this section for any record or class of records.

§ 6. Prevention of invasions of privacy. In accordance with the provisions of subdivision three of section eighty eight of the Public Officers Law and in conformity with such guidelines as may be promulgated by the Committee on Public Access to Records regarding the prevention of unwarranted invasions of personal privacy, the secretary may delete from any record identifying details the disclosure of which would result in an unwarranted invasion of personal privacy prior to making such record available for inspection and/or copying. In the event that one or more deletion is so made from any document, the secretary shall provide written notice of that fact to the person given access to the record. If the record is such that the personal matters cannot be fully deleted without substantively affecting the record or the identifying details cannot be effectively deleted, the secretary shall deny access to such record as provided in section seven of this Regulation.

§ 7. Grant or denial of access to records. If the secretary determines that an application to inspect and/or copy records pertains to information required to be disclosed under paragraph a, b, c, d, e, f, g, h or i of subdivision one of section eighty eight of the Public Officers Law and not exempt from disclosure as an unwarranted invasion of personal privacy or otherwise, he shall grant the application. If the secretary determines that an application to inspect and/or copy records pertains to other information not exempt from disclosure as an unwarranted invasion of personal privacy or otherwise, he shall grant the application unless he determines that to do so would adversely affect the public interest. If the secretary determines that an application to inspect and/or copy records pertains to information specifically exempted from disclosure by paragraph a, b, c or d of subdivision seven of section eighty eight of the Public Officers Law or under section six of this Regulation pursuant to subdivision three of section eighty-eight of such law, he shall deny such application. In denying any application to inspect and/or copy records the secretary shall indicate his reason for such denial and shall advise the applicant of his right to appeal such denial to the counsel.

§ 8. Appeals. Any person whose application to inspect and/or copy records has been denied pursuant to section seven of this Regulation may appeal such denial to the counsel at his office at the State Capitol in Albany. Such appeal must be in writing and must set forth: the name and address of the applicant; the specific record(s) requested; the date of the denial; and the reasons given for such denial. The counsel shall, upon receipt of a written appeal, immediately review the matter and affirm, modify or reverse the denial. If the counsel affirms or modifies the denial, he shall, within seven days of receipt of the appeal:

(1) communicate his reasons for such affirmation or modification to the person making the appeal; and

(2) inform such person of his right to appeal such affirmation or modification under article 78 of the Civil Practice Law and Rules.

§ 9. Effective date. Whereas, the Freedom of Information Law becomes effective September 1, 1974, and whereas this regulation is essential to the effective implementation of such law as it regards the records of the Executive Chamber, this regulation is hereby adopted as an emergency measure pursuant to subdivision three of section one hundred one-a of the Executive Law and shall take effect on the first day of September, nineteen hundred seventy-four.

Signed: Malcolm A. Wilson

Dated: August 30, 1974

Footnotes

^* [Repealed by Regulation 1 (Mario M. Cuomo), § 14.1, infra.]

Notes

N.Y. Comp. Codes R. & Regs. Tit. 9 § 13.2

Repealed by Regulation 1 (Mario M. Cuomo), § 14.1, infra.