S T A T E O F N E W Y O R K
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S. 6846 A. 9928
S E N A T E - A S S E M B L Y
February 12, 2010
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IN SENATE -- Introduced by Sen. BRESLIN -- read twice and ordered print-
ed, and when printed to be committed to the Committee on Finance
IN ASSEMBLY -- Introduced by M. of A. HOYT, McENENY, MAGEE, SCHIMMINGER,
KAVANAGH -- Multi-Sponsored by -- M. of A. GALEF -- read once and
referred to the Committee on Governmental Operations
AN ACT to amend the executive law, in relation to the records of the
governor and executive chamber and the arts and cultural affairs law
in relation to establishing record keeping policies and procedures
relating to certain records of the legislature and civil departments;
and to repeal section 5 of the executive law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 5 of the executive law is REPEALED and a new
section 5 is added to read as follows:
S 5. GOVERNOR AND EXECUTIVE CHAMBER RECORDS. 1. RECORDS OF THE GOVER-
NOR AND THE EXECUTIVE CHAMBER STAFF ARE OF SPECIAL IMPORTANCE TO THE
GOVERNMENT AND CITIZENS OF NEW YORK STATE, BECAUSE THE RECORDS DOCUMENT
THE ACTIVITIES AND DECISIONS OF STATE GOVERNMENT'S CHIEF EXECUTIVE OFFI-
CER. MANY RECORDS OF THE GOVERNOR AND THE EXECUTIVE CHAMBER STAFF ARE OF
ENDURING VALUE AND WARRANT ARCHIVAL PRESERVATION BECAUSE SUCH RECORDS
CONTAIN DOCUMENTARY EVIDENCE ABOUT SIGNIFICANT POLICIES, PROGRAMS, AND
DECISIONS MADE OR INSTITUTED BY THE GOVERNOR.
2. AS USED IN THIS SECTION:
A. THE TERM "GOVERNOR'S RECORDS" MEANS ALL CORRESPONDENCE, MEMORANDA,
REPORTS, PROPOSALS, OR OTHER DOCUMENTARY MATERIALS OR REASONABLY SEGREG-
ABLE PORTIONS THEREOF, REGARDLESS OF PHYSICAL FORM OR CHARACTERISTICS,
CREATED OR RECEIVED BY THE GOVERNOR, HIS OR HER IMMEDIATE STAFF, OR A
UNIT OR INDIVIDUAL IN THE EXECUTIVE CHAMBER WHOSE FUNCTION IS TO ADVISE
AND ASSIST THE GOVERNOR, IN THE COURSE OF TRANSACTING BUSINESS OR
CONDUCTING ACTIVITIES WHICH RELATE TO OR HAVE AN EFFECT UPON THE CARRY-
ING OUT OF THE CONSTITUTIONAL, STATUTORY, ADMINISTRATIVE, OR OTHER OFFI-
CIAL OR CEREMONIAL DUTIES OF THE GOVERNOR. SUCH RECORDS INCLUDE DOCU-
MENTARY MATERIALS RELATING TO POLITICAL ACTIVITIES OF THE GOVERNOR OR A
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD15412-01-0
S. 6846 2 A. 9928
MEMBER OF THE STAFF, BUT ONLY IF SUCH ACTIVITIES RELATE TO OR HAVE A
DIRECT IMPACT UPON THE CONSTITUTIONAL, STATUTORY OR OTHER OFFICIAL OR
CEREMONIAL DUTIES OF THE GOVERNOR AND DOES NOT INCLUDE DOCUMENTARY MATE-
RIALS THAT ARE (I) OFFICIAL RECORDS OF AN AGENCY; (II) PERSONAL RECORDS;
(III) STOCKS OF PUBLICATIONS, FORMS, AND STATIONERY; (IV) EXTRA COPIES
OF DOCUMENTS PRODUCED ONLY FOR CONVENIENCE OF REFERENCE; AND (V) LIBRARY
OR MUSEUM MATERIAL MADE OR ACQUIRED SOLELY FOR REFERENCE AND EXHIBITION
PURPOSES.
B. THE TERM "PERSONAL RECORDS" MEANS ALL DOCUMENTARY MATERIALS OR
REASONABLY SEGREGABLE PORTIONS THEREOF, OF A PURELY PRIVATE OR NONPUBLIC
CHARACTER WHICH DO NOT RELATE TO OR HAVE AN EFFECT UPON THE CARRYING OUT
OF THE CONSTITUTIONAL, STATUTORY, OR OTHER OFFICIAL OR CEREMONIAL DUTIES
OF THE GOVERNOR INCLUDING PERSONAL DIARIES, JOURNALS AND NOTES; MATERI-
ALS RELATING TO PRIVATE POLITICAL ASSOCIATIONS; AND MATERIALS RELATING
EXCLUSIVELY TO THE GOVERNOR'S OWN ELECTION TO THE OFFICE OF GOVERNOR AND
MATERIALS RELATING DIRECTLY TO THE ELECTION OF INDIVIDUALS TO FEDERAL,
STATE OR LOCAL OFFICE.
C. THE TERM "FORMER GOVERNOR", WHEN USED WITH RESPECT TO GOVERNOR'S
RECORDS, MEANS THE FORMER GOVERNOR DURING WHOSE TERM OR TERMS OF OFFICE
SUCH RECORDS WERE CREATED.
D. THE TERM "ARCHIVIST" SHALL MEAN THE HEAD OF THE STATE ARCHIVES IN
THE STATE EDUCATION DEPARTMENT.
3. GOVERNOR'S RECORDS ARE OWNED BY THE STATE OF NEW YORK AND SHALL BE
ADMINISTERED IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION AND OF
SECTION 57.05 OF THE ARTS AND CULTURAL AFFAIRS LAW.
4. THE GOVERNOR AND HIS OR HER EXECUTIVE CHAMBER STAFF SHALL ESTABLISH
RECORDKEEPING POLICIES AND PROCEDURES TO ASSURE THAT:
A. RECORDS AND RECORDKEEPING SYSTEMS ARE CREATED TO PROVIDE COMPLETE
AND COMPREHENSIVE DOCUMENTARY EVIDENCE OF THE SIGNIFICANT ACTIVITIES,
DELIBERATIONS, DECISIONS, AND DEVELOPMENT AND IMPLEMENTATION OF POLICIES
THAT REFLECT THE PERFORMANCE OF CONSTITUTIONAL, STATUTORY, AND THE OFFI-
CIAL AND CEREMONIAL DUTIES OF THE GOVERNOR;
B. DOCUMENTARY MATERIALS PRODUCED OR RECEIVED BY THE GOVERNOR AND
EXECUTIVE CHAMBER STAFF ARE CATEGORIZED AS GOVERNOR'S RECORDS;
C. RECORDS AND RECORDKEEPING SYSTEMS REMAIN USABLE AND ACCESSIBLE AS
LONG AS NEEDED FOR BUSINESS OR RESEARCH PURPOSES;
D. RECORDS AND RECORDKEEPING SYSTEMS ARE EVALUATED BY THE STATE
ARCHIVES IN ORDER TO ENSURE THAT RECORDS ARE RETAINED FOR THE LENGTH OF
TIME NECESSARY TO MEET LEGAL, FISCAL, AND ADMINISTRATIVE NEEDS AND TO
CONFORM WITH ANY LEGAL MANDATES; TO ENSURE THAT RECORDKEEPING SYSTEMS
MAINTAIN RECORDS IN USABLE AND ACCESSIBLE FORM; AND TO IDENTIFY AND
PROTECT RECORDS THAT HAVE ENDURING RESEARCH VALUE AND WARRANT PRESERVA-
TION IN THE STATE ARCHIVES; AND
E. RECORDS IDENTIFIED BY THE STATE ARCHIVES AS HAVING ENDURING,
EVIDENTIAL, INFORMATIONAL, HISTORICAL, OR OTHER RESEARCH VALUE ARE
TRANSFERRED TO THE STATE ARCHIVES DURING OR AT THE END OF A GUBERNATORI-
AL ADMINISTRATION CONSISTENT WITH THE PROVISIONS OF SECTION 57.05 OF THE
ARTS AND CULTURAL AFFAIRS LAW AND RECORDS RETENTION AND DISPOSITION
SCHEDULES PROMULGATED PURSUANT TO SUCH LAW.
5. UPON COMPLETION OF A TERM OF OFFICE OR IF SERVING CONSECUTIVE TERMS
UPON CONCLUSION OF THE LAST TERM, THE STATE ARCHIVES SHALL ASSUME
RESPONSIBILITY FOR CUSTODY, CONTROL, AND PRESERVATION OF, AND ACCESS TO,
GOVERNOR'S RECORDS. THE STATE ARCHIVES SHALL HAVE AN AFFIRMATIVE DUTY TO
MAKE SURE SUCH RECORDS ARE AVAILABLE TO THE PUBLIC AS RAPIDLY AS POSSI-
BLE, CONSISTENT WITH THE PROVISIONS OF THIS SECTION.
S. 6846 3 A. 9928
6. THE STATE ARCHIVIST MAY DEPOSIT SUCH RECORDS IN A REPOSITORY OTHER
THAN THE STATE ARCHIVES PROVIDED THAT THE STATE OF NEW YORK SHALL RETAIN
OWNERSHIP AND THE ARCHIVIST HAS ASCERTAINED THAT THE REPOSITORY MEETS
GENERALLY ACCEPTED STANDARDS AND FOLLOWS ACCEPTED PRACTICES FOR ARCHIVAL
ADMINISTRATION, THAT THE RECORDS ARE AVAILABLE FOR PUBLIC ACCESS PURSU-
ANT TO THE PROVISIONS OF THIS SECTION, AND THAT THE RECORDS MAY BE
RETURNED TO THE STATE ARCHIVES IF THE REPOSITORY IS UNABLE TO PROVIDE
ACCEPTABLE CONDITIONS.
7. THE STATE ARCHIVIST MAY DISPOSE OF RECORDS THAT ARE DEEMED OF NO
FURTHER RESEARCH VALUE CONSISTENT WITH THE PROVISIONS OF SECTION 57.05
OF THE ARTS AND CULTURAL AFFAIRS LAW.
8. RECORDS TRANSFERRED TO THE STATE ARCHIVES SHALL BE ADMINISTERED
PURSUANT TO THE PROVISIONS OF ARTICLE SIX OF THE PUBLIC OFFICERS LAW,
EXCEPT THAT PRIOR TO THE CONCLUSIONS OF TERM OR TERMS OF OFFICE, A
GOVERNOR MAY SPECIFY DURATIONS, NOT TO EXCEED FIFTEEN YEARS FROM THE
LAST DAY OF THE GOVERNOR'S TERM IN OFFICE, FOR WHICH ACCESS SHALL BE
RESTRICTED WITH RESPECT TO INFORMATION IN GOVERNOR'S RECORDS IN ONE OR
MORE OF THE FOLLOWING CATEGORIES:
A. RELATING TO APPOINTMENT TO STATE OFFICE; AND
B. EXEMPTED FROM DISCLOSURE PURSUANT TO THE PUBLIC OFFICERS LAW.
9. DURING THE PERIOD OF RESTRICTED ACCESS, THE ARCHIVIST SHALL ESTAB-
LISH PROCEDURES WHEREBY ANY PERSON DENIED ACCESS MAY REQUEST A WRITTEN
DETERMINATION BY THE ARCHIVIST OR DESIGNEE WITHIN THIRTY DAYS OF
REQUEST, SETTING FORTH THE BASIS FOR THE DETERMINATION.
10. THE FOLLOWING SHALL BE EXCEPTED FROM RESTRICTIONS ON ACCESS:
A. EMPLOYEES OF THE STATE ARCHIVES IN THE PERFORMANCE OF NORMAL WORK
TO ADMINISTER THE RECORDS;
B. FORMER GOVERNORS OR THEIR DESIGNEES FOR RECORDS RELATING TO THEIR
TERMS OF OFFICE;
C. SUBJECT TO ANY RIGHTS, DEFENSES, OR PRIVILEGES WHICH AN AGENCY OR
INDIVIDUAL MAY INVOKE, GOVERNOR'S RECORDS SHALL BE MADE AVAILABLE:
(1) PURSUANT TO SUBPOENA OR OTHER JUDICIAL PROCESS ISSUED BY A COURT
OF COMPETENT JURISDICTION FOR THE PURPOSES OF ANY CIVIL OR CRIMINAL
INVESTIGATION OR PROCEEDING;
(2) TO AN INCUMBENT GOVERNOR IF SUCH RECORDS CONTAIN INFORMATION THAT
IS NEEDED FOR THE CONDUCT OF CURRENT BUSINESS OF THE OFFICE AND THAT IS
NOT OTHERWISE AVAILABLE; AND
(3) TO EITHER HOUSE OF THE STATE LEGISLATURE, TO THE EXTENT OF MATTER
WITHIN ITS JURISDICTION, IF SUCH RECORDS CONTAIN INFORMATION THAT IS
NEEDED FOR THE CONDUCT OF CURRENT BUSINESS AND IS NOT OTHERWISE AVAIL-
ABLE.
11. UPON THE DEATH OR DISABILITY OF A GOVERNOR OR FORMER GOVERNOR, ANY
DISCRETION OR AUTHORITY THE GOVERNOR OR FORMER GOVERNOR MAY HAVE HAD
UNDER THIS SECTION SHALL BE EXERCISED BY THE ARCHIVIST.
12. LIEUTENANT GOVERNOR'S RECORDS SHALL BE SUBJECT TO THE PROVISIONS
OF THIS SECTION IN THE SAME MANNER AS GOVERNOR'S RECORDS.
S 2. Subdivision 4 of section 57.05 of the arts and cultural affairs
law is amended to read as follows:
4. (A) Except as otherwise provided by law, the state archives shall
acquire and assume the official custody and responsibility for preserv-
ing and making available for reference and use those official records of
the legislature, the judiciary and the civil departments of the state
government which are deemed to have sufficient historical value or other
value to warrant their continued preservation by the state.
S. 6846 4 A. 9928
(B) EXCEPT AS OTHERWISE PROVIDED BY LAW, THE STATE ARCHIVES SHALL
ASSIST THE LEGISLATURE AND CIVIL DEPARTMENTS OF THE STATE GOVERNMENT TO
ESTABLISH RECORDKEEPING POLICIES AND PROCEDURES TO ENSURE THAT:
(1) RECORDS AND RECORDKEEPING SYSTEMS ARE CREATED TO PROVIDE COMPLETE
AND COMPREHENSIVE DOCUMENTARY EVIDENCE OF THE SIGNIFICANT ACTIVITIES,
DELIBERATIONS, DECISIONS, AND DEVELOPMENT AND IMPLEMENTATION OF POLICIES
THAT REFLECT THE PERFORMANCE OF CONSTITUTIONAL, STATUTORY, AND THE OFFI-
CIAL AND CEREMONIAL DUTIES OF THE LEGISLATURE AND CIVIL DEPARTMENTS OF
THE STATE GOVERNMENT;
(2) RECORDS AND RECORDKEEPING SYSTEMS REMAIN USABLE AND ACCESSIBLE AS
LONG AS NEEDED FOR BUSINESS OR RESEARCH PURPOSES;
(3) RECORDS AND RECORDKEEPING SYSTEMS ARE EVALUATED BY THE STATE
ARCHIVES IN ORDER TO ENSURE THAT RECORDS ARE RETAINED FOR THE LENGTH OF
TIME NECESSARY TO MEET, LEGAL, FISCAL AND ADMINISTRATIVE NEEDS AND TO
CONFORM WITH ANY LEGAL MANDATES; TO ENSURE THAT RECORDKEEPING SYSTEMS
MAINTAIN RECORDS IN USABLE AND ACCESSIBLE FORM; AND TO IDENTIFY AND
PROTECT RECORDS THAT HAVE ENDURING RESEARCH VALUE AND WARRANT PRESERVA-
TION IN THE STATE ARCHIVES.
S 3. This act shall take effect immediately.