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Adoption of Schedule CO-2 and Request for Additional Copies
Before any records listed on Schedule CO-2 may be disposed of, the governing body must formally adopt the Schedule by passing a resolution. A model resolution is included at the end of the Introduction to this Schedule. It is not necessary to send a copy of the passed resolution to the State Archives.
This Schedule may be used by the local government until the governing body rescinds its authorizing resolution, or the Schedule is superseded or replaced by the State Archives.
Additional copies of Schedule CO-2 can be obtained by calling the State Archives at (518) 474-6926 or faxing the State Archives at (518) 486-4923. Schedule CO-2 can also be obtained in electronic format by calling, faxing or writing the State Archives. The State Archives' e-mail address is firstname.lastname@example.org. Schedule CO-2 is also available on the Internet at the State Archives' website at http://www.archives.nysed.gov.
Arrangement of Items on the Schedule
In general, items on Schedule CO-2 are arranged as they were in the previous edition, with a few significant exceptions. The Budget, Payroll and Purchasing sections are now subsections of the Fiscal section. The Planning section is now a subsection of the Building and Property Regulation section. Radiological Health records have been moved from the Environmental Health section to the Public Health section. The Rape Crisis Intervention section has been removed and is now covered by the Social Services section. A new section has been added to cover records of Educational Opportunity Centers.
New or Revised Items
Items on this Schedule preceded by an asterisk symbol (*) are either new to this edition, or have been substantively changed from the previous edition. They may have longer or shorter retention periods, additional parts, or additional or revised explanatory notes. Please note these changes carefully on your office schedules and/or inventory or records control forms because only the current items as contained in this edition of Schedule CO-2 are legally applicable. In particular, the Environmental Health and Public Safety sections have been thoroughly revised, with new subsections and items reorganized.
Unique Item Numbering System
In addition to consecutive numbering of items within each section/subsection of the Schedule, items are also assigned a unique identifying number. That number, which appears in brackets [ ], does not change as items are revised or relocated in new editions of Schedule CO-2. New items in this edition have been assigned new unique identifying numbers regardless of their location in the Schedule.
Interpreting Schedule Items
Many of the schedule items are broad and describe the purpose or function of records rather than identifying individual documents and forms. Local officials should match the records in their offices with the generalized descriptions on the Schedule to determine appropriate retention periods. Records whose content and function are substantially the same as an item described in the Schedule should be considered to be covered by that item. Local officials should check with the State Archives when they are uncertain regarding coverage of a function. In situations where local officials have combined related types of records, covered by different items in this Schedule, into a single file series, it may be impractical to separately apply the retention periods of the various applicable Schedule items to the individual records in the file. In such situations, officials may find it more convenient to dispose of the entire set of records by using the applicable retention item with the longest retention period.
Retention periods on this Schedule apply to one "official" copy designated by the local government unless otherwise stated. No matter what the medium, local officials must ensure that the information will be retained for the specified retention period.
The retention periods listed on this Schedule pertain to the information contained in records, regardless of physical form or characteristic (paper, microfilm, computer disk or tape, or other medium). Duplicate copies of records, including copies maintained on different media (paper, electronic, etc.), may be disposed of in accordance with item no. 19 of the General section of this Schedule.
Some records may be needed to defend the local government in legal actions. Records that are being used in such actions must be retained for the entire period of the action even if their retention period has passed. If the retention period has expired by the time the legal action ends, the record must be retained for at least one additional year to resolve any need for the record in an appeal. If the retention period has not expired, the record must be retained for the remainder of the retention period, but not less than one year after the legal action ends. Prior to disposing of records, local officials may wish to consult with their county attorney to verify that no legal actions have been initiated which would require longer retention of the records.
Additional Retention Requirement in Commissioner's Regulations
The State Education Department's Office of the Professions oversees the professional conduct of licensed health professionals other than physicians, who are under the jurisdiction of the Department of Health. Section 29.2 of 8NYCRR (Regulations of The Commissioner of Education) contains "General Provisions for the Health Professions." Paragraph 3 of subdivision a of this Section states that "unprofessional conduct" includes "failing to maintain records for each patient which accurately reflects the evaluation and treatment of the patient. Unless otherwise provided by law, all patient records must be retained for at least six years. . . . . records of minor patients must be retained for at least six years, and until one year after the patient reaches the age of 21 years."
A number of health related items on Schedule CO-2 and other State Archives' schedules contain minimum legal retention periods which permit disposition of records three years after a minor attains age 18. These items are mostly found in the Personnel/Civil Service and Public Health sections. In these instances, certain records pertaining to minors must also be retained for an additional year if those records are subject to the Section 29.2 requirements for health professionals, other than physicians, employed by or associated with local governments. For additional information on this situation, contact the State Archives' Government Records Services.
Program and fiscal audits and other needs of state and federal agencies are taken into account when retention periods are established by the State Archives. However, in some instances agencies with audit responsibility and authority may formally request that certain records be kept beyond the retention periods. If such a request is made, these records must be retained beyond the retention periods until the local government receives the audit report or until the need is satisfied.
Records That Have Been Microfilmed or Electronically Duplicated
The retention and disposition of the originals of records that have been microfilmed or electronically duplicated is governed by Section 57.29 of the Arts and Cultural Affairs Law and the State Archives' procedures. Please contact the State Archives for further information prior to beginning a program of microfilming or any other form of records duplication.
While items on Schedule CO-2 for the most part cover records regardless of the format in which they are maintained, electronic records in some subject areas are treated differently in this edition of the schedule. Some electronic records are listed specifically in the Building and Property Regulation, Environmental Health, Public Health, Public Safety, Taxation and Assessment, and Transportation and Engineering sections. In addition, the Electronic Data Processing section has been greatly expanded to cover a number of series not covered by the previous edition of this Schedule. Study the State Archives' Regulations relating to electronic records (Section 185.8, 8NYCRR), and contact the State Archives if you have any questions or problems after reviewing these requirements. Contact the State Archives as well if you need additional information on electronic records falling in the subject areas mentioned above.
Generally, records transmitted through e-mail systems have the same retention periods as records in other formats that are related to the same program function or activity. E-mail records should be scheduled for disposition in conjunction with any other records related to the program function. Local governments may delete, purge, or destroy e-mail records provided that the records have been retained for the minimum retention established in this Schedule and are not being used for a legal action or audit. Transitory messages may be destroyed in a timely manner, using item no. 18 in the General section of the Schedule. Further information on e-mail records, suggested filing practices, dealing with duplicate copies, and a sample e-mail policy are found on the State Archives' website at . See also the State Archives' Publication No. 62, Managing E-Mail Effectively. Contact the State Archives for additional information.
Electronic records created specifically for distribution via the Internet are considered publications, and are covered by item no. 11 in the General section.
Public Access to Records
This Schedule does not address the issue of public access to records. Access issues are not covered by the Local Government Records Law but are covered by the Freedom of Information Law (Public Officers Law, sections 84 through 90). The State Archives urges local government officials to consult with their own counsels, the Committee on Open Government which administers the Freedom of Information Law (see below), or the state or federal agency having oversight over the records in question.
The Committee on Open Government is responsible for administering the Freedom of Information Law, which governs rights of access to government records. (The Committee also administers the Open Meetings Law which concerns the conduct of meetings of public bodies and the right to attend those meetings.) The Committee can provide written or oral advice and mediate in controversies in which rights may be unclear. For more information or advice, please contact:
Committee on Open Government
NYS Department of State
One Commerce Plaza
99 Washington Avenue, Suite 650
Albany, NY 12231
The Committee has issued a booklet, Your Right to Know: New York State's Open Government Laws, which provides guidance on the Freedom of Information Law. As explained in that booklet, the law defines what is meant by a "record" and sets forth provisions regarding access. The booklet states that "all records are accessible, except records that fall within one of nine categories of deniable records." These nine categories (Section 87.2 of the Law) are explained in the booklet. The categories include records which, if disclosed, would result in an unwarranted invasion of personal privacy; records which would, if disclosed, impair present or imminent contract awards or collective bargaining negotiations; certain records prepared for law enforcement purposes; certain types of inter-agency or intra-agency communications; and several other categories. The booklet describes them in detail. As the booklet notes, "the categories of deniable records are generally directed to the effects of disclosure. They are based in great measure upon the notion that disclosure would in some instances `impair,' `cause substantial injury,' `interfere,' `deprive,' `endanger,' etc."
Local officials should note that the Freedom of Information Law does not require that they provide unrestricted public access to birth, death and marriage licenses. Information about providing access to such records can be obtained from the Vital Records Section of the New York State Department of Health.
Governments are required to develop a subject matter list of their records and to designate a records access officer to coordinate their response to public requests for records. The booklet also explains how people can obtain records, the process for denying access, and how that denial can be appealed. It explains other provisions of the law in detail.
The State Archives strongly urges local officials to read this booklet and contact the Committee on Open Government for any guidance or advice that is needed.
Please note that any record listed in this Schedule for which a Freedom of Information (FOIL) request has been received should not be destroyed until that request has been answered and until any potential appeal is made and resolved, even if the retention period of the record has passed.
Records in this Schedule may or may not be confidential, depending on what information they contain and on the possible effect of disclosure of that information. In approaching issues of confidentiality and access, it may be helpful to consider the following, after reviewing the laws and the Your Right to Know booklet referred to above:
- What was the purpose for which the records were created?
- What information do they contain? What subjects are covered?
- How are the records used?
- How do they relate to other records that may have similar information?
- What would be the likely effect of disclosure of the information in the records?