Senate Bill S4307

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4307--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                             March 12, 2015
                               ___________

Introduced  by  Sens. KRUEGER, PARKER -- read twice and ordered printed,
  and when printed to be committed to the  Committee  on  Investigations
  and  Government  Operations  --  committee  discharged,  bill amended,
  ordered reprinted as amended and recommitted to said committee

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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09918-02-5
              

S. 4307--A                          2

agencies.  The  consequences  of such a policy are illustrated in a 2015
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 bill would establish the same standards for  treating  the
Executive  and  Legislative  branches  under  FOIL.  The bill 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.
  S  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  6
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].
  6. "ARCHIVES" MEANS ANY INSTITUTION AS DEFINED BY SECTION 57.05 OF THE
ARTS AND CULTURAL AFFAIRS LAW.
  S  3.  Subdivision  1  of  section  88  of  the public officers law is
REPEALED.
  S 4. The public officers law is amended by adding a new  section  88-a
to read as follows:
  S  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

S. 4307--A                          3

ACCOUNTS  MANAGED BY OTHER STAFF, INCLUDING, BUT NOT LIMITED TO PERSONAL
ASSISTANTS, CONFIDENTIAL ASSISTANTS, OR ADMINISTRATIVE ASSISTANTS.
  (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.

S. 4307--A                          4

  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
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.
  S  5.  Subparagraphs  vi  and vii of paragraph (b) of subdivision 2 of
section 89 of the public officers law, as amended by section 11 of  part
U  of chapter 61 of the laws of 2011, are amended and a new subparagraph
viii is added to read as follows:
  vi. information of a personal nature contained in a  workers'  compen-
sation  record,  except  as provided by section one hundred ten-a of the
workers' compensation law; [or]
  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[.];
AND
  VIII. COMMUNICATIONS OF A PERSONAL NATURE  BETWEEN  STATE  LEGISLATORS
AND THEIR CONSTITUENTS.
  S  6.  The  arts  and  cultural affairs law is amended by adding a new
section 57.06 to read as follows:
  S 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;

S. 4307--A                          5

  (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
  (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.
  S 7. Section 5 of the executive law is REPEALED.
  S 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.
  S 9. The legislative law is amended by adding a new  section  33-a  to
read as follows:
  S  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.
  S  10.  Section  70-0113  of  the  environmental  conservation  law is
REPEALED.
  S 11. This act shall take effect on  the  one  hundred  twentieth  day
after it shall have become a law.