Managing Records: Laws & Regulations
8 NYCRR: REGULATIONS OF THE COMMISSIONER OF EDUCATION
PART 188
STATE GOVERNMENT ARCHIVES AND RECORDS MANAGEMENT
188.1 Purpose.
This Part establishes a framework of policies and procedures for the creation, maintenance, disposition, and selective preservation of State government records. Based on this framework, the State Archives and Records Administration will work in partnership with state agencies, and where applicable with the judiciary, to carry out records management programs that support effective program management and public services delivery, promote economical and efficient management of information resources, and ensure that records of archival value are identified, protected, and, when appropriate, transferred to the State Archives for preservation.
188.2 Definitions.
As used in this Part:
(a) Agency means any department, division, board, bureau, office, council,
commission, authority, public benefit corporation having statewide responsibility,
or a separate unit of the executive branch of state government created
or established by law or executive order, but shall not include the Executive
Chamber.
(b) Automated information system means the organized collection, processing,
transmission, and storage of records in accordance with defined procedures
and in a system that involves use of a computer.
(c) Archives facility means a facility administered by the commissioner
for the preservation and controlled use of archival records transferred
from agencies and the judiciary, or a facility that is approved by the
commissioner as having an equivalent capacity to ensure the physical security
and control of archival records. State Archives means an archives facility
administered by the commissioner.
(d) Commissioner means the commissioner of education.
(e) Director means the Assistant Commissioner of Education who is director
of the State Archives and Records Administration.
(f) Disposition means the authorized action to dispose of the records
of an agency or the judiciary by destruction, transfer to another agency
or branch of government, or transfer to an archives facility.
(g) Record series means a group of related records that result from the
same activity and can be evaluated together for disposition and other
management purposes. Usually, the records in a record series are arranged
under a single filing system or are otherwise kept together as a unit.
(h) Records means all books, papers, microforms, computer-readable tapes,
discs or other media, maps, photographs, film, video and sound recordings,
or other documentary materials, regardless of physical form or characteristics,
made or received by any agency or by the judiciary in pursuance of law
or in connection with the transaction of public business and retained
by that agency or its legitimate successor as evidence of the organization,
functions, policies, decisions, procedures, operations, or other activities,
or because of the information contained therein, but shall not include
the records of the Executive Chamber. Library or museum material made
or acquired and preserved solely for reference or exhibition purposes,
extra copies of documents preserved only for convenience of reference,
and stocks of publications and of blank forms shall not be deemed to constitute
records.
(1) Active records means records that are frequently referenced or otherwise frequently used for conducting current business.
(2) Archival records means records that are designated by the commissioner for continuous preservation because they have enduring administrative, legal, fiscal, educational, historical, or other research value to State government and/or its citizens. Such term is not used as a synonym for computer-generated records that are stored off-line.
(3) Electronic records means those records which are stored in a form that can be read or processed only by means of a computer.
(4) Inactive records means records that are infrequently referenced or otherwise infrequently used for conducting current business.
(5) Vital records means selected records which, in the event of a disaster, are essential to the resumption or continuation of government operations, to the re-creation of the legal and financial status of State government, or to the protection of and fulfillment of obligations to the citizens of the State. Such term is not used as a synonym for official birth, death, and marriage records.
(i) Records center facility means a facility maintained by the commissioner
for the secure storage, servicing and protection of inactive records prior
to their disposition by destruction, transfer to another agency or branch
of government, or transfer to an archives facility.
(j) Records management means the planning, organizing, directing, controlling
and other activities needed for effective records creation, records maintenance
and use, and records disposition.
(k) Records retention and disposition schedule means a document that prescribes
the legally required minimum retention periods for records and the final
disposition of records and may also describe where and in what form records
must be kept.
(l) Retention period means a period of time, expressed in terms of an
event which must occur and/or the time which must elapse, before records
may be disposed.
(m) State Archives and Records Administration, or SARA, means the organizational
unit within the State Education Department which has responsibility to
administer the State and Local Government Archives and Records Management
programs.
188.3 Responsibility of the State Archives and Records Administration.
(a) The director shall administer the State Archives and State
records center programs and facilities, shall provide records management
training and technical assistance services to agencies, and shall approve
the preservation and disposition of records, on behalf of the commissioner,
according to procedures set forth in this Part.
(b) The director shall institute a system for the review of agency records
management plans and programs to determine agency compliance with the
applicable provisions of this Part, to identify opportunities for improving
agency records management programs and practices, to propose plans for
SARA records management assistance and advice, and to ensure the identification
and preservation of archival records. Based on these reviews, the director
shall prepare written findings for the commissioner, who shall thereupon
report and make recommendations to the head of each respective agency
and to the Director of Division of the Budget.
(c) As part of this review, and with the understanding that SARA staff
shall not disclose confidential information contained in any agency records,
the director may inspect the condition and assess the value of agency
records which, in his or her opinion, are likely to be archival records.
In lieu of physical inspection of records, the director shall obtain from
an agency sufficient information about the general contents and uses of
records to permit an evaluation of the research value of the records.
188.4 Establishment of agency records management programs.
(a) The head or governing body of each agency shall appoint or designate an agency records management officer, who is authorized to administer the agency's records management program, including liaison with SARA. The purpose of the agency records management program shall include but need not be limited to the following:
(1) promulgating records retention and disposition policies and ensuring compliance by all agency staff;
(2) ensuring that agency records are maintained and disposed in compliance with applicable sections of this Part;
(3) ensuring that the agency cooperates with SARA to identify, protect, and preserve archival records including those of the agency head and associated staff;
(4) establishing a process to prepare and annually review and update an agency records management plan, which contains objectives and target dates to achieve compliance with the applicable provision of this Part, including plans to complete or maintain inventories and records retention and disposition schedules and, as needed, to guide agency program offices in the application of sound records management practices;
(5) furnishing to SARA such reports as the director may request regarding agency records and records management programs and practices.
(b) On or before January l, 1993, and thereafter when a change occurs,
the head or governing body of each agency shall notify the commissioner
in writing of the name and title of the persons designated as the agency's
records management officer.
188.5 Duties and responsibilities of agency records management officers.
(a) The agency records management officer shall plan, promote and monitor the agency records management program in consultation with agency program managers and SARA. The duties of the records management officer shall include but need not be limited to the following:
(1) participate in the comprehensive records management training program offered by SARA to the extent necessary to fulfill the applicable requirements of this Part;
(2) compile and maintain a current inventory of agency records;
(3) prepare and submit to SARA proposed records retention and disposition schedules, or other plans which delineate proposed records retention and disposition practices;
(4) oversee the continuing disposition of records in accordance with approved records retention and disposition schedules or other plans which delineate records retention and disposition practices;
(5) contribute to the development of and review of plans and programs to improve the management of agency records.
188.6 General provisions for the identification and disposition of agency records.
(a) No agency shall destroy, transfer custody of, destroy the means to access, or otherwise dispose of any records without first having secured authorization to do so in accordance with the applicable provisions of this Part.
(b) Records disposition authorizations that were issued pursuant to
the provisions of former Section 186 of the State Finance Law, and that
remained in effect when such law was repealed, continue in full force
and effect unless modified or abrogated under applicable provisions of
this Part.
(c) SARA shall issue written guidelines to assist agency staff to distinguish
between records and documentary materials that are not records.
(d) Each agency shall develop and carry out plans to compile and maintain
an up-to-date inventory of all records in its custody. An inventory shall
contain information sufficient to prepare and implement records retention
and disposition schedules. At minimum, an inventory shall include the
title, purpose, responsible program area, contents, arrangement, volume,
dates and locations of all records series, and the hardware and software
requirements for all electronic records.
(e) Each agency shall develop and carry out plans to obtain authorization
from SARA for records retention and disposition schedules or plans governing
all records in the agency. Agencies shall submit proposals to establish
such schedules in a manner and form prescribed by the director. A proposal
may be used to obtain ongoing disposal authorization for records which
continue to accumulate or to obtain one-time disposal authorization for
records which are discontinued.
(f) Each records disposition proposal must be reviewed by the agency records
management officer for completeness and accuracy and be signed by the
agency records management officer, whose signature shall constitute the
agency's certification that the records listed in the proposal do not
have sufficient administrative, legal, fiscal or other value to the agency
to warrant their continued retention beyond the expiration of the proposed
retention periods.
188.7 Review of agency proposals for records disposition authorization.
(a) In reviewing agency records disposition proposals, SARA shall consider the submitting agency's statutory functions and responsibility. To be approved, the proposal shall demonstrate:
(1) that records are kept for a length of time sufficient to meet administrative, legal and fiscal requirements; and
(2) that records of temporary administrative, legal and fiscal value are disposed of in accordance with sound records management practices. When warranted, SARA shall review selected records disposition proposals to determine whether the records are archival records and warrant preservation in an archives facility.
(b) SARA, with the consent of the agency records management officer, may revise a records disposition proposal prior to taking final action to authorize disposition.
(c) At least 40 days prior to authorizing an agency records disposition
proposal, SARA shall forward a copy to the offices of the Attorney General
and State Comptroller for their review. The attorney general or a designee
shall determine if the proposed records retention period meets legal requirements.
The State Comptroller or a designee shall determine if the proposed records
retention period meets fiscal and audit requirements. No authorization
to destroy records will be issued by the commissioner if either the Attorney
General or the State Comptroller, within 30 days after receiving a request,
shall advise SARA that such records should not be destroyed according
to the proposed schedule or plan.
188.8 SARA response to agency proposals for records disposition authorization.
(a) SARA, upon applying its criteria and after appropriate review by
the offices of the Attorney General and State Comptroller as described
in section 188.7 (c) of this Part, shall return the records disposition
proposal to the agency records management officer indicating approval
or disapproval of the proposed records retention and disposition schedule
or plan.
(b) The agency records management officer shall be informed in writing
and shall be entitled to meet with SARA staff to review and discuss the
reasons for disapproval of any proposed records retention and disposition
schedule or plan. An agency records management officer shall be entitled
to a formal meeting with the director to discuss a disapproved proposal.
188.9 Revising records disposition authorizations.
(a) An agency may request a revision to a records disposition authorization
by preparing and submitting a proposal to SARA following the procedures
of section 188.6 of this Part. Proposals will be processed by SARA as
indicated by sections 188.7 and 188.8 of this Part.
(b) A records disposition authorization, once issued, may be cancelled,
suspended, and reinstated by the director and may be amended by the director
to lengthen a minimum retention period which must elapse before the records
may be destroyed.
(c) The Attorney General, the Comptroller, or the agency to which a records
disposition authorization pertains may cancel or may suspend and later
reinstate any authorization upon notification to the director.
188.10 Records schedules issued by SARA.
(a) General records retention and disposition schedules may be issued
by SARA to authorize the retention and disposition of records common to
some or all agencies.
(b) At least 40 days prior to issuance, SARA will forward a copy of a
proposed general records schedule to the offices of the Attorney General
and State Comptroller for their review. The Attorney General or a designee
shall review the schedule to determine if proposed dispositions meet legal
requirements. The State Comptroller or a designee shall review the schedule
to determine if proposed dispositions meet fiscal and audit requirements.
If either the Attorney General or State Comptroller, within 30 days after
receiving a proposed schedule, shall advise SARA that any records should
not be destroyed according to the proposed schedule, no authorization
to destroy such records will be included on a general records retention
and disposition schedule issued by SARA.
(c) Each agency records management officer shall inform the director in writing of the agency's intent to adopt and use a general records schedule. Adoption of a general records schedule eliminates the need for an agency to comply with the provisions of section 188.6 of this Part for those records included on the general records schedule. In the event of duplication of any record series between a general records retention and disposition schedule and an approved agency retention and disposition schedule, the provisions of the agency schedule shall prevail for that agency.
188.11 Disposition of records by an agency.
(a) No records shall be destroyed prior to the expiration of the retention
period specified in the applicable records retention and disposition schedules
or other plans authorized by the director.
(b) Bulk quantities of disposable paper and microform records shall be
recycled or otherwise disposed in an environmentally conscious manner
pursuant to a wastepaper recycling program administered by SARA or an
equivalent disposal program administered by the agency. The SARA program
will include provisions for the contractor to shred confidential records
prior to recycling.
(c) Archival records in accordance with authorized retention and disposition
schedules or other authorized plans shall be promptly transferred to an
archives facility.
188.12 Emergency destruction of records.
(a) Whenever an agency has in its custody any records that are considered
by the head of that agency to be in such a condition that they constitute
a menace to human safety or health or to property, the head of such agency
may request from the commissioner authorization to destroy or dispose
of such records immediately, indicating the conditions which make such
immediate destruction or disposal necessary.
(b) The commissioner, as soon as possible after receipt of an emergency
request to destroy or dispose of records, shall advise the Attorney General
and the State Comptroller, or their designees, of the need for the immediate
destruction or disposal of the records in question.
(c) The Attorney General and the State Comptroller, or their designees,
when notified by the commissioner of the request for emergency destruction
of records, may immediately notify the commissioner that they have no
objection to the destruction or disposal proposed. Upon receiving such
notification, the commissioner may authorize the immediate destruction
or disposal of such records.
188.13 Records damaged or destroyed as a result of natural or manmade disaster.
(a) Whenever records are destroyed in whole or in part by fire or flood or as a result of any natural or manmade disaster, the records management officer of the agency responsible for the custody of the records so damaged or destroyed shall:
(l) notify the director, as soon as practicable, as to the nature, type, and quantity of the records damaged or destroyed and the circumstances surrounding their damage or destruction;
(2) take immediate steps to protect the damaged records from further deterioration in accordance with technical advice furnished by SARA;
(3) initiate action, when appropriate and in accordance with technical advice from SARA, to retrieve, reassemble and reconstruct the information contained in the damaged or destroyed records.
(b) The director, upon notification of damage or destruction of records
by fire or flood or as the result of any natural or manmade disaster,
shall advise the Attorney General and the State Comptroller of such damage
or destruction.
(c) Within 60 days after the fire or flood or natural or manmade disaster
causing damage or destruction to records, the agency records management
officer shall furnish the director with information about the nature,
type, and quantity of records no longer available for use; and the types
of information contained in those records.
188.14 Operation of records center facilities.
(a) The commissioner shall operate records center facilities to provide
for the secure, cost-effective storage of inactive records; to provide
secure storage for vital records, for master copies of microforms, for
backup copies of electronic records, and for records that require special
security or environmental conditions; and to provide records retrieval
services at the request of the organizational unit which transferred the
records. Records of agencies and the judiciary are eligible for storage
at records center facilities.
(b) The commissioner, in accepting records of an agency or a unit of the
judiciary for storage in a records center facility, assumes responsibility
for the physical possession, storage, protection and servicing of such
records and the security of the information contained in them, as an agent
of the head of the agency or the official of the judiciary transferring
such records.
(c) SARA, acting for an agency storing records in a records center facility,
shall be responsible for destroying records that are eligible for destruction
pursuant to records disposition authorizations. SARA shall notify the
agency records management officer at least 40 days prior to the intended
destruction of agency records stored at a records center facility. Upon
request of the agency records management officer, stating justification
for continued retention of the records, the director may authorize the
continued storage of the records for a specified period of time.
188.15 Transfer of records to records center facilities.
(a) An agency or a unit of the judiciary proposing to transfer inactive
records to a records center facility shall notify SARA of the proposed
transfer in the manner and form prescribed by the director.
(b) An agency or a unit of the judiciary shall not ship or cause to be
delivered to a records center facility any record which SARA has not agreed
in advance to accept for storage and retrieval.
(c) Records consigned to a records center facility must be identified
and packaged according to procedures established by the director.
(d) The director shall provide, upon request, technical advice in the
identification and packing of records to be transferred to a records center
facility. Such technical advice will not include furnishing personnel
to pack the records.
188.16 Access to records stored in records center facilities.
(a) Access to records stored in and serviced at a records center facility
will be permitted only as authorized in writing by the agency records
management officer or the authorized representative of the unit of the
judiciary transferring records to the facility. Such authorizations shall
be in a manner and form prescribed by the director.
(b) Each agency or unit of the judiciary, when transferring records to
a records center facility, shall indicate in writing such restrictions
on the retrieval of records as the agency or unit of the judiciary desires
or requires the director to enforce. The director shall take all necessary
and proper actions to enforce such restrictions.
(c) SARA will provide retrieval and refiling services for records stored
in a records center facility. Requests for a record stored in a records
center facility may be made in person, by telephone, or by mail in a manner
and form prescribed by the commissioner. SARA will release records only
to authorized representatives of the agency or the unit of the judiciary
which transferred the records.
(d) In the event that the commissioner is served with a court order or
a subpoena, or a request for certification of authenticity, or a written
request for access to records, or any legal process which relates to records
stored in a records center facility, the commissioner shall immediately
notify the agency or the unit of the judiciary which transferred such
records to the records center facility. It shall then be the duty of such
agency or unit of the judiciary to respond to the order, request, or other
legal process.
188.17 Review of agency proposals to establish or lease facilities
or to contract for services to store records.
(a) The director, at the request of the Division of the Budget, shall review proposals by agencies to establish or lease facilities or to contract for services to store inactive records, vital records, master copies of microforms, or backup copies of electronic records. The director will consider the availability of space in records center facilities and will evaluate the following elements of an agency proposal:
(1) the proposed inactive records storage location;
(2) the security and environmental conditions of the proposed storage location;
(3) the space to be occupied in gross square feet;
(4) the nature and quantity of records to be stored;
(5) total resources to operate the storage location, including personnel to be employed;
(6) justification for the proposed storage location.
(b) The director shall recommend to the division of the budget approval
of requests by agencies to establish or lease facilities or to contract
for services to store inactive records when greater economy or efficiency
can be achieved by such operation than by use of a records center facility
and when such operation will adequately provide for the protection and
servicing of records.
188.18 Duplicating and/or replacing agency records by microfilming.
(a) For the purposes of this section, microfilming means the photographic
process of creating miniaturized copies of human-readable records on film
and source records means the records that are copied. The provisions of
this section apply only to the duplication of source records by microfilming,
which is commonly known as source document microfilming, and do not apply
to computer-generated microfilm.
(b) An agency shall obtain records disposition authorization for source
records that are microfilmed and for the microform copy.
(c) When source records are duplicated on microform, with the intent of
destroying the source records and retaining only the microfilm copy, an
agency shall establish procedures to ensure that microfilm is an authentic
copy of the original records.
(d) In addition to the other provisions of this section, an agency may
destroy source records and retain only the microfilm copy provided that
the film images are clear and legible; the master camera negative is used
only to produce a printing master from which all additional copies are
made; the master camera negative is stored in a records center facility
vault or a comparable secure storage facility; and the agency records
management officer certifies that microfilm production and processing
techniques were selected to ensure that the microfilm will remain usable
for the required retention period.
(e) If archival source records are duplicated on microfilm, an agency
must comply with all other provisions of this section and the following:
(l) only a safety-base silver gelatin microform shall be used as the original camera negative film;
(2) each batch of processed film shall be tested to ensure that processing chemicals which could cause image deterioration are washed from the film.
(f) Prior to the destruction of any source records that are to be replaced
by microfilm, the director or a designee may inspect the agency microfilm
procedures and products to verify compliance with the applicable provisions
of this section.
188.19 Computer-generated recording of information on microfilm.
(a) The provisions of this section apply only to original records produced
by computer-generated recording of information on microfilm, the resulting
product of which is commonly known as computer-output microfilm (COM).
(b) When COM records are identified as archival records, the following
shall apply to the production and maintenance of the COM:
(l) Only a safety-base silver gelatin microform shall be used as the original film copy, which shall be used only to produce a printing master from which all additional copies will be made. The original film copy shall be stored in a records center facility vault or a comparable storage facility.
(2) Each batch of processed film shall be tested to ensure that processing chemicals which could cause image deterioration are washed from the film.
188.20 Retention and preservation of electronic records.
(a) A State agency or local government
shall ensure that records retention requirements are incorporated into
any plan and process for design, redesign, or substantial enhancement
of an information system that uses electronic data processing or electronic
optical imaging technologies to maintain or store electronic records.
(b) A State agency or local government shall ensure that electronic records
are not rendered unusable because of changing technology before their
retention and preservation requirements are met. In the case of archival
electronic records, a State agency or local government, in consultation
with SARA, must determine that the records will remain usable and accessible
through conversion of the records to new system hardware and software
and through the creation of adequate documentation as defined in subdivision
(c) of this section. If a State agency cannot accomplish such a conversion,
it shall transfer the archival electronic records to the State Archives
in a usable and accessible format.
(c) A State agency or local government shall develop and maintain up-to-date documentation about all permanent or archival electronic records sufficient to:
(1) specify all technical characteristics necessary for reading and processing the records;
(2) identify all defined inputs and outputs from the system;
(3) define the contents of the files and records;
(4) determine restrictions on access and use;
(5) understand the purposes and functions of the system;
(6) describe update cycles and/or conditions and rules for adding information to the system, changing information in the system, or deleting information; and
(7) ensure the ongoing retention of records by the State agency or local government or, in the case of State agencies, the authorized transfer of records to an archives facility.
(d) A State agency shall prepare and store in a records center, and local
governments shall prepare and store in a secure off-site facility, backup
copies of archival electronic records in order to safeguard against loss.
(e) For magnetic computer media that contain permanent or archival electronic
records, a State agency or local government shall institute maintenance
procedures to:
(1) verify no more than six months prior to use that the magnetic media used to store permanent or archival electronic records are free of permanent errors;
(2) rewind under constant tension all tapes and cartridges at least every two years;
(3) annually test a three percent statistical sample of all volumes, or 10 volumes of each type, of magnetic media, whichever is larger, to identify any loss of data and to discover and correct the causes of data loss;
(4) copy immediately onto new media any permanent or archival electronic records stored on media with 10 or more permanent errors per volume;
(5) copy all permanent or archival electronic records onto new media before the media are 10 years old; and
(6) prepare external labels which provide a unique identifier for each volume, the name of the organizational unit responsible, and the permanent or archival electronic records title.
188.21 Fees for records management services.
(a) Each agency shall pay to the State Education Department an annual fixed fee to support education and training, disposition analysis and review, technical assistance, and other records management advisory services provided by SARA. These fees are set on the basis of the total volume of records (active and inactive) in the custody of an agency; higher fees reflect a larger volume of records. Fees are assessed in accordance with the following schedule:
(1) Category 1: $20,000 per agency
Audit and Control, Department of (Office of the State Comptroller)
Correctional Services, Department of
Education Department
Health, Department of
Labor, Department of
Mental Health, Office of
Mental Retardation and Developmental Disabilities, Office of
Motor Vehicles, Department of
Social Services, Department of
Taxation and Finance, Department of
Transportation, Department of
Workers' Compensation Board(2) Category 2: $15,000 per agency
Alcoholic Beverage Control, Division of
Criminal Justice Services, Division of
Environmental Conservation, Department of
General Services, Office of
Higher Education Services Corporation
Insurance Department
Law, Department of (Office of the Attorney General)
Parole, Division of
State Insurance Fund(3) Category 3: $10,000 per agency
Civil Service, Department of
Housing and Community Renewal, Division of
Military and Naval Affairs, Division of
Parks, Recreation and Historic Preservation, Office of
Public Service, Department of
State, Department of
State Police, Division of
State University of New York
Youth, Division for(4) Category 4: $5,000 per agency
Agriculture and Markets, Department of
Alcoholism and Substance Abuse Services, Division of
Banking Department
Budget, Division of the
Dormitory Authority
Economic Development, Department of
Elections, State Board of
Empire State Development Corporation
Executive Chamber (Office of the Governor)
Human Rights, Division of
Lottery, Division of the
Power Authority of the State of New York
Probation and Correctional Alternatives, Division of
Racing and Wagering Board
Real Property Services, Office of
Thruway Authority(5) Category 5: $2,000 per agency
Adirondack Park Agency
Advocate for Persons with Disabilities, Office of
Aging, Office for the
Arts, Council on the
Capital Defender Office
Children and Families, Council on
Consumer Protection Board
Correction, Commission of
Crime Victims Board
Developmental Disabilities Planning Council
Domestic Violence, Office for the Prevention of
Empire State Theater Institute
Employee Relations, Office of
Energy Research and Development Authority
Environmental Facilities Corporation
Governor's Traffic Safety Committee
Housing Finance Agency
Inspector General, Office of the
Investigation, Temporary State Commission of
Judicial Conduct, Commission on
Law Revision Commission
Lobbying, Temporary State Commission on
Nelson A. Rockefeller Performing Arts Center Corporation
Nonviolence, Institute for
Olympic Regional Development Authority
Public Employment Relations Board
Quality of Care for the Mentally Disabled, Commission on
Regulatory Reform, Office of
Science and Technology Foundation
State of New York Mortgage Agency
State University Construction Fund
Tax Appeals, Division of
Teachers Retirement System
Veterans' Affairs, Division of
Women, Division for
(b) Each agency or unit of the judiciary that stores records in a records center facility shall pay annual fees for storage of such records. Such storage fees shall be in addition to the annual fixed fees required by subdivision (a) of this section. Fees for records center facility storage will be calculated based on the average monthly holdings of the records center facilities according to the following schedule:
(1) $2.20 per cubic foot for storage of paper records.
(2) $1.50 per cartridge, tape, or disk for storage of computer or other magnetic and optical media.
(3) $. 25 per reel or equivalent microform for storage of microfilm.
(c) Annual fixed fees, unless waived by the commissioner, will be assessed
annually and are payable each State fiscal year. Records center facility
storage fees will be assessed annually and are payable each State fiscal
year. A waiver of the annual fixed fee may be granted if an agency's total
State operations budget is less than $500,000 or if an agency no longer
operates as an administratively separate unit of State government or if
other extenuating circumstances exist that would make it unduly burdensome
for an agency to pay such fee.
(d) SARA may also establish fees for central micrographics services. Such
fees shall reflect the actual cost of carrying out such services.
(e) Revenue generated as the result of contracts administered by SARA
for the recycling or other authorized disposal by sale of bulk quantities
of State government records authorized for destruction shall be payable
to the State Education Department to support records management services
provided by SARA.
188.22 Operation of archives facilities.
(a) The commissioner shall operate the State Archives for the secure
storage, preservation and research use of records deemed by the commissioner
to have sufficient administrative, legal, fiscal, educational, historical
or other research value to warrant archival retention and administration.
(b) The commissioner, in accepting records of an agency or a unit
of the judiciary for preservation in an archives facility, assumes official
legal custody of the records, including responsibility for access to them;
unless the commissioner agrees in advance to preserve and administer records
which may remain in the custody of an agency or a unit of the judiciary.
(c) After records are transferred to an archival facility, the
commissioner may destroy from among the archival records duplicate copies,
nonrecord material, and any nonvaluable records that are so identified
as the records are processed and preserved.
188.23 Transfer of agency records to an archives facility.
(a) Agency records that have been determined to have sufficient value
to warrant preservation shall be transferred to an archives facility when
the originating agency no longer needs to use the records for the purpose
for which they were created or when the records are infrequently, if ever,
used in the conduct of regular agency business, and when the commissioner
determines that protection and research use of the records is most effectively
and efficiently accomplished by professional archival administration in
an archives facility.
(b) Prior to any scheduled transfer of records from an agency to the State
Archives, the transferring agency shall notify SARA using forms and procedures
prescribed by the director. These forms and procedures shall constitute
a formal request from the agency for the director to accept custody of
a shipment of records consigned to the State Archives.
(c) For archival records stored temporarily in a records center facility,
SARA will notify the agency records management officer 40 days prior to
the scheduled date of transfer to an archives facility and the agency
records management officer shall approve or disapprove such transfer within
30 days of receipt of the notice. Approval of the notice by an agency
shall constitute a formal request from the agency for the director to
accept custody of a shipment of records consigned to the State Archives.
(d) Archival records consigned to the State Archives must be identified
and packaged according to procedures established by the director.
(e) Records storage equipment received with transfers of records to the
State Archives will be retained or disposed of by SARA unless the transferring
agency requests their return.
188.24 Identification, preservation, and public access to archival
records of the judiciary.
(a) At the request of the Chief Judge of the Court of Appeals or a presiding
justice of the Appellate Division of the Supreme Court or the Chief Administrator
of the Courts, the commissioner shall review and recommend plans and procedures
for the disposition of judicial records in order to identify and insure
the preservation of those judicial records which warrant archival retention
and administration. In carrying out this function for court records administered
by local governments, the commissioner also may consult with the New York
State Local Government Records Advisory Council.
(b) Archival records of the Unified Court System may be transferred
to the State Archives. Notwithstanding any other provision of these rules,
such archival judicial records shall be administered and made available
for public use according to conditions mutually agreed upon by the commissioner
and the Chief Judge for records of the Court of Appeals; a presiding justice
for records of the Appellate Division of the Supreme Court; and the Chief
Administrator of the Courts for all other records of the Unified Court
System.
188.25 Identification, preservation, and public access to archival
records of the Executive Chamber.
(a) For the purposes of this section, executive chamber records are defined
as all books, papers, microforms, computer-readable tapes, discs or other
media, maps, photographs, film, video and sound recordings, or other documentary
materials, regardless of physical form or characteristics, made or received
by the Governor and his or her Executive Chamber staff, or made by the
Governor and Executive Chamber staff and transmitted by them to the office
of the head or governing body of any agency, in connection with the transaction
of public business, and retained by the Governor and his or her staff
or an agency head or governing body or its legitimate successor as evidence
of the organization, functions, policies, decisions, procedures, operations,
or other activities, or because of the information contained therein.
Library or museum material made or acquired and preserved solely for reference
or exhibition purposes, extra copies of documents preserved only for convenience
of reference, and stocks of publications of blank forms shall not be deemed
to constitute records.
(b) Consistent with any policies established by the Governor or his or
her designee, the commissioner shall review proposed records retention
and disposition schedules or other plans and procedures for the disposition
of Executive Chamber records in order to identify and ensure the continued
preservation of those Executive Chamber records which warrant archival
retention and administration. In addition, the commissioner shall advise
and assist the Governor or his or her designee in the operation of records
management programs so that archival records may be readily identified
and protected.
(c) Executive Chamber records may be transferred to the State records
center facility, where access to such Executive Chamber records shall
remain under the control of the Governor or former Governor who transferred
the records, or a designee. There shall be no charge for storage in a
records center facility of Executive Chamber records that are identified
as archival and are scheduled for later transfer to the State Archives.
(d) Executive Chamber records which are identified as archival should
ultimately be transferred to the State Archives to be preserved and made
available for research.
188.26 Public access to archival records from State agencies.
(a) The director, or a designee, whose office is located in Room 10D45,
Cultural Education Center, Albany, NY, shall serve as the records access
officer for all archival records which are in the State Archives and in
the official custody of the commissioner. Access to these archival records
shall be subject to the provisions of this section and Part 187 of this
Title. In the event of a conflict, the provisions of this section shall
apply.
(b) Archival records shall be available for inspection at the State Archives
research room located on the 11th floor of the Cultural Education Center,
Albany, NY 12230. Archival records shall be available during normal business
hours for use by any individual subject to procedures needed to ensure
the security and preservation of the records. Catalogs, inventories, lists,
and other finding aids describing records in the State Archives are available
to assist researchers.
(c) Requests to inspect or to obtain copies of archival records may be
made orally or in writing. The records access officer shall have the right
to require that any request shall be in writing in a form prescribed by
the records access officer.
(d) SARA reserves the right of the records access officer to review requested
records and to withhold access to records or portions of records that
may be exempted from public disclosure by subdivision 2 of section 87
of the Public Officer's Law (Freedom of Information Law).
(e) The records access officer shall not restrict or deny access to any
records more than 75 years old, except pursuant to provisions of law which
explicitly prohibit access to the records.
(f) The commissioner may establish conditions to permit controlled access
to certain records in the State Archives which may be exempt from disclosure
under law, provided that there are no provisions of law which explicitly
prohibit access to the records. In establishing such access conditions,
the commissioner may enter into a memorandum of understanding with the
agency that transferred the records to the State Archives to require the
prior review and approval of the agency before the records access officer
makes a decision to permit access to the records.
(g) With respect to records which are determined not to be available,
the records access officer shall inform the person requesting the records
in writing of such denial.
(h) Appeals shall be directed to the commissioner on forms prescribed
by him or her, copies of which are available at the State Archives facility.
All such appeals shall be delivered to the records access officer or a
SARA staff person in the State Archives research room within 30 days after
denial from which such appeal is taken. Appeals shall be determined by
the commissioner or an authorized representative.
(i) Copies of records will be provided at a cost not to exceed that permitted
in the Freedom of Information Law.
188.27 Protection and loan of archival records.
(a) Archival records shall not be removed from an archives facility unless
removal is required for preservation treatment purposes or is otherwise
authorized by the director pursuant to the provisions of this section.
(b) In instances of demonstrated need and subject to terms and conditions
set forth in an agreement between SARA, acting through the director, and
an agency or other unit of State government, archival records in the custody
of the commissioner may be loaned for official use outside the archives
facility.
(c) In instances of demonstrated need and subject to terms and conditions
set forth in an agreement between SARA, acting through the director, and
a museum, historical records repository, library, school, or other organization
or institution, archival records may be loaned for educational and exhibit
purposes.
(d) The commissioner may establish satellite research room facilities,
operated in cooperation with other archival, library or educational establishments,
and permit the temporary transfer of archival records from the State Archives
to such satellite facilities.
(e) The commissioner may temporarily deny or restrict use of records
in the State Archives, or require use of copies in lieu of original archival
records, when the physical condition of archival records might be endangered
by use.
188.28 Archival records of State University of New York.
(a) The archival records of the State University of New York (SUNY) central
administration shall be preserved and administered in a location mutually
agreed upon by the SUNY Board of Trustees and the director, and may be
transferred to the State Archives. The archival records of the colleges
and universities of the State University of New York shall ordinarily
be preserved and administered on-site at the respective campuses.
(b) The SUNY central administration, in consultation with the colleges
and universities, shall prepare and implement standards for the administration
of archival records of the colleges and universities, subject to the commissioner's
approval of such standards.
(c) The Chancellor of the State University of New York, or a designee,
shall report biannually to the commissioner on activities to administer
archival records of the SUNY colleges and universities.
(d) Funds made available to the State University of New York for
records administration activities pursuant to the documentary heritage
program administered by SARA may be used, among other purposes, to assist
the State University of New York to develop the standards cited in subdivision
(b) of this section, to guide campuses in addressing the standards, and
to prepare biannual reports.
188.29 Board of Elections records.
(a) Each board of elections established under the provisions of the Election
Law may destroy or dispose of any records in its custody providing authorization
to do so has been obtained from the commissioner pursuant to the provisions
of section 57.05 of the Arts and Cultural Affairs Law. To obtain such
authorization, a board of elections may, by formal resolution, adopt the
retention and disposition schedule issued by SARA in consultation with
the State Board of Elections for use by county boards of elections. A
board of elections that does not adopt the general schedule must submit
an application, in a manner and form prescribed by the commissioner, requesting
authorization to destroy or dispose of records. Such application shall
be signed by two members of the board who shall not be members of the
same political party.
(b) When a board of elections plans to preserve a microfilm copy of records
in lieu of preserving the original records, such board shall ensure that
microfilm procedures and products meet the provisions specified in section
188.18 of this Part.