New York State Archives Policy on Access to Records
Introduction
The New York State Archives provides access to its records in compliance with state and federal statutes, in a manner that is as open and timely as reasonably possible. This statement of policies and procedures is intended to inform researchers and the general public about the laws and regulations pertaining to access to records in the State Archives, about legal and other restrictions on access to some of those records, and about procedures for requesting access to restricted records.
- Access to records in the New York State Archives
- Statutes and regulations governing access to records in the Archives
- Restricted records in the State Archives
- Frequently Requested Restricted Records
- Freedom of Information Law (FOIL) requests
Access to records in the New York State Archives
The mission of the New York State Archives is to preserve and ensure access to those records created by state government that have been determined to have enduring value.
- Pursuant to the Arts & Cultural Affairs Law, sect. 57.05, the State Archives “shall acquire and assume the official custody and responsibility for preserving and making available … official records of the legislature, the judiciary, and the civil departments of the state government.”
- The law also authorizes the State Archives to acquire and make available the records of local government entities as well as public benefit corporations. Upon transfer of official custody, the State Archives assumes responsibility for administering access to those records.
- Most records held by the State Archives are open to research to the public without access restrictions.
- Approximately two thirds of the State Archives 6,000 have record series no legal access restrictions.
- Less than 5 percent have access restrictions.
Statutes and regulations governing access to records in the Archives
The State Archives provides access to its collections in accordance with a number of statutes and regulations:
Arts and Cultural Affairs Law, sect. 57.05
- This section gives the Commissioner of Education power to create rules and regulations governing public access to archival records.
- These rules and regulations are found in the Regulations of the Commissioner of Education, New York Code of Rules and Regulations (NYCRR), Title 8, sect. 188.24-188.28.
- The full text of the Arts and Cultural Affairs Law can be found on the New York State Assembly website, and Senate website. Applicable sections of the Regulations of the Commissioner of Education can be found on the New York State Archives’ website
Freedom of Information Law, or FOIL (Public Officers Law, Article 6), sect. 84-90
- This law grants the public access to all records of the executive branch of the state government, as well as local government records, unless disclosure would be harmful to an individual or preclude a government agency from carrying out its duties.
- Records of the State Legislature, though covered by the law, are treated differently than executive branch and local government records. However, once records of the State Legislature come into the custody and ownership of the State Archives, these records are subject to FOIL provisions as they apply to the executive branch, of which the State Archives is part.
- Court records are not subject to FOIL.
- Examples of records that may be withheld from public inspection include those that
- Are specifically exempted from disclosure by state or federal law
- If disclosed would result in an unwarranted invasion of personal privacy
- If disclosed would endanger the life or safety of any person
- Are law enforcement records which, if disclosed, would reveal non-routine criminal investigative techniques or confidential information relating to a criminal investigation
Further information regarding FOIL, including the full text of the law, can be found on the Committee on Open Government website.
Personal Privacy Protection Law, or PPPL (Public Officers Law, Article 6-A), sect. 91-99
- This law bars the disclosure of records containing personal information when disclosure would result in an unwarranted invasion of personal privacy.
- PPPL gives individuals certain rights of access to records relating to them personally.
- PPPL does not apply to records of the State Legislature, the courts, or local governments.
- Once records of the State Legislature or local governments come into the custody and ownership of the State Archives, these records are subject to PPPL provisions as they apply to executive branch agencies.
- Examples of an unwarranted invasion of personal privacy include
- Disclosure of employment, medical, or credit histories or personal references of applicants for employment
- Disclosure of medical or personal records of clients or patients in medical facilities
- Disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject of that information
- Further information regarding PPPL can be found on the Committee on Open Government website. The full text of the law can be found on New York State Assembly and Senate websites.
Restricted records in the State Archives
- For the most part records are restricted pursuant to specific state and federal statutes.
- Examples with specific statute restirictions are psychiatric center patient records, bank examination reports, and Moreland Act commission investigative records.
- Access to some other records is restricted under the general exemptions of FOIL
- Examples: applications for executive clemency and human rights discrimination complaint files
- The State Archives also restricts access to records that are physically fragile
- Particularly records damaged in the 1911 Capitol fire
- Such restrictions are permitted by a regulation of the Commissioner of Education, NYCRR Title 8, sect. 188.27(e).
Frequently Requested Restricted Records
The most frequently requested restricted records in the State Archives are psychiatric center patient records and correctional facility inmate records. Inter-agency memoranda of understanding (MOUs) and applicable state and federal statutes and regulations govern access to those records. The access restrictions and procedures for requesting access are as follows:
Psychiatric center patient records.
- Access to all records of patients of state psychiatric centers (in several cases these facilities were formerly known as asylums or state hospitals) is indefinitely restricted
- See Mental Hygiene Law (MHL) sect. 33.13
- See (federal) Health Insurance Portability and Accountability Act (HIPAA)
- Restrictions apply regardless of the date of the record.
- MHL sect. 33.13 does authorize disclosure of information from patient records for specified legal and administrative purposes, and also to “qualified researchers.”
- Disclosure of information from patient records is also authorized by MHL sect. 33.16 to patients themselves and to other “qualified persons.”
All requests for access to patient records received by the State Archives are forwarded to the New York State Office of Mental Health (OMH), which reviews and approves or disapproves such requests.
Conditions and procedures for obtaining access to psychiatric center patient records in the State Archives differ for qualified researchers and former patients and their legal representatives, immediate family members, and descendants:
Researchers engaged in medical, historical, or other research are given access to psychiatric center patient records, under a provision of MHL sect. 33.13 and an inter-agency MOU between the OMH and the State Archives.
- A researcher needing access to patient records should request an application form from the State Archives reference services unit and return the completed application to the Archives.
- The Archives then forwards the application to OMH. An OMH Institutional Review Board reviews the application and determines whether the applicant is a qualified researcher to whom the records may be disclosed.
- A qualified researcher must agree not to redisclose identifying information about any patient.
Former patients and their legal representatives, immediate family members, and descendants
Former patients and their legal representatives, immediate family members, and descendants may request information from a patient record.
Disclosure of such information to those individuals is governed by one or more provisions of MHL sect. 33.13 and 33.16, OMH internal guidelines, and HIPAA.
All such requests should be communicated, preferably in writing, to the OMH facility where a patient was treated. If a request for disclosure is sent to the State Archives, it is forwarded to OMH.
If OMH approves disclosure of information from a patient record, OMH contacts the State Archives, obtains the needed information, and discloses it to the former patient, a legal representative, immediate family member, or descendant.
The State Archives has comprehensive patient records for several OMH facilities, and summary records (admission registers) for some other facilities. However, the Archives does not hold documentation on all former patients in OMH facilities. Researchers and others may contact OMH to obtain information about patient records not transferred to the State Archives:
Records Access Officer
New York State Office of Mental Health
44 Holland Avenue
Albany, NY 12229
http://www.omh.state.ny.us
Correctional facility inmate records.
- Summary information about adult inmates is disclosable under law.
- Other information on inmates is restricted by various state and federal statutes and regulations.
- e.g. probation, parole, medical, and criminal history reports
- Access to records of inmates of state correctional facilities (formerly known as prisons or reformatories) is governed by provisions of the Correction Law sect. 29.2, NYCRR Title 7, sect. 5.23, and other state and federal statutes and regulations.
- NYCRR Title 7, sect. 5.20-25, contains detailed provisions on disclosure of information about inmates.
- Section 5.24(b)(10) provides for disclosure of the medical record to “scientific and historical researchers, provided there is no unwarranted invasion of the privacy of the subject.”
- Access to inmate records transferred to the State Archives is also guided by provisions of an inter-agency MOU between the Department of Correctional Services (DOCS) and the State Archives.
- NYCRR Title 7, sect. 5.20-25, contains detailed provisions on disclosure of information about inmates.
In practice, correctional facility inmate records in the State Archives that are more than 75 years old are disclosed without restriction, according to a regulation of the Commissioner of Education, found in NYCRR Title 8, sect. 188.26(e).
Requests to the State Archives for access to the record of a particular inmate must provide
- the inmate’s name,
- the prison to which committed,
- the date of conviction or admission.
- without that information Archives staff usually cannot search for a record, because comparatively few of the voluminous inmate records in the Archives are indexed.
Researchers should also note that the Archives holds incomplete records of correctional facility inmates prior to 1956, and only a very small sample of inmate records for the period ca. 1956-1981.
Summary information about current and recent inmates in New York State correctional facilities is available online through the DOCS website.
Researchers may also request information about an inmate from the DOCS facility where an individual was incarcerated, or from the agency’s central office:
Records Access Officer
New York State Department of Correctional Services
Harriman State Campus, Building 2
Albany, NY 12226
http://www.docs.state.ny.us
Freedom of Information Law (FOIL) requests
The State Archives’ general policy is to provide access to archival records without requiring researchers to file FOIL requests for that access.
Researchers should be aware of their ability to file FOIL requests for access:
- if the records are restricted, or
- if they believe that their non-FOIL requests for access have been improperly denied.
To file a request under FOIL:
- submit a written request for access to the records and cite the Freedom of Information Law as the basis for that request
- Requests must reasonably identify the desired records to enable Archives’ staff to locate and retrieve the records to which access is sought
- Send FOIL requests to:
Records Access Officer
New York State Archives
Cultural Education Center, Room 3043
Albany, NY 12230
The State Archives is required to respond to FOIL requests for access to records within five business days by
- making the records available
- denying access in writing and stating the reasons for the denial
- furnishing a written acknowledgement of the request and stating the approximate date when the request will be granted or denied
If a request for access is denied, in whole or in part, the requestor may submit a written appeal of the denial to the Commissioner of the State Education Department.
- Such appeals must be submitted within 30 days of a denial.
- The Commissioner must answer appeals within 10 business days by either making the records available or stating in writing the reasons for further denial of access.
- A requestor can seek judicial review of such further denial by initiating a legal proceeding under Article 78 of the Civil Practice Law and Rules.
For general information on access to records in the State Archives, including restricted records and the procedure for making FOIL requests, contact Research Assistance
For general information on FOIL and PPPL:
- categories of records covered by the Freedom of Information Law and the Personal Privacy Protection Law,
- the process for seeking access to records under FOIL and PPPL, or
- the process for appealing denials of access
Contact:
Committee on Open Government
New York State Department of State
41 State Street
Albany, NY 12231
(518) 474-2518
E-mail: opengov@dos.state.ny.us
http://www.dos.state.ny.us.coog
[approved 12/2004]