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
                               ___________

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  Section  5  of  the  executive  law is REPEALED and a new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.