Meeting of the Board of Regents | December 2007

THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

TO:
FROM:	Jeffrey Cannell
SUBJECT:	Amendment of Sections 185.1, 185.2, 185.3, 185.5, 185.6, 185.7, 185.8, 185.9 and 185.10 of the Regulations of the Commissioner of Education – Local Government Records Management
DATE:	November 16, 2007
STRATEGIC GOAL:	Goal 2
AUTHORIZATION(S):

Summary

 

Issue for Decision

 

              Should the Regents adopt the proposed amendment of sections 185.1, 185.2, 185.3, 185.5, 185.6, 185.7, 185.8, 185.9 and 185.10 of the Regulations of the Commissioner of Education, regarding Local Government Records Management?

Reason for Consideration

 

              Implementation of Regents policy.

 

Proposed Handling

 

The proposed amendment will be submitted at the December 2007 meeting to the Committee for recommendation and to the Full Board for action.

 

Procedural History

 

 

������������� The proposed amendment was discussed by the Cultural Education Committee in October.  The proposed amendment has been recommended by the State Education Department after consultation with and review by the New York State Local Government Records Advisory Council.  State Archives staff prepared these revisions to the current regulations to improve management of records by New York’s local governments, to bring regulations into compliance with current industry standards, and to improve the Commissioner’s oversight of local government records programs.  Copies of the complete proposed amendment are available upon request from the Secretary to the Board of Regents. 

 

A Notice of Proposed Rule Making was published in the State Register on September 26, 2007.

Background Information

 

It is the purpose of the proposed amendment of sections 185.1, 185.2, 185.3, 185.5, 185.6, 185.7, 185.8, 185.9 and 185.10 of the Regulations of the Commissioner of Education to revise and update requirements for the management and oversight of local government records. 

 

Article 57-A of the Arts and Cultural Affairs Law defines the responsibilities of the Commissioner of Education to advise local governments on the development of programs for the creation, maintenance, preservation, reproduction, retention, and disposition of their records; on the development of micrographics systems, automated data processing systems, and other systems that rely on technology to create, store, manage, and reproduce information or records; and on the preservation and use of vital records and records of enduring value for historical or other research purposes.  The law authorizes the Commissioner of Education to establish requirements for the proper creation, preservation, management and protection of records and to promulgate regulations to implement the provisions of this article.

 

              The specific provisions of the proposed amendment will revise procedures for local government notifications to the Commissioner of new records management officers; increase the number of members of the Local Government Records Advisory Council and designate certain officials as permanent members of that Council; broaden the criteria used to select members of the Council; decrease the number of required annual meetings of the Council; enable all local governments to adopt and use their own records disposition schedule or schedule items, with approval from the Commissioner, in lieu of or in addition to a schedule issued by the Commissioner; enable local governments to obtain the Commissioner’s consent to the destruction of damaged records which are a risk to health or safety; update requirements for replacing original records with microforms based on current industry standards; allow digital images of records to replace original or micrographic copies of those records for retention purposes; update requirements for the retention and preservation of electronic records based on current industry standards; require that all agreements for the storage of local government records in facilities other than those owned or maintained by the local government meet criteria established by the Commissioner and be approved by the Commissioner; and eliminate the present requirement that a copy of archival records reformatted through local government records management improvement grants be deposited with the State Archives.

             

Recommendation

 

Staff recommends that the Regents take the following action:

 

              VOTED:  That sections 185.1, 185.2, 185.3, 185.6, 185.7, 185.8, 185.9, 185.10 of the Regulations of the Commissioner of Education be amended, and that subdivision (c) of section 185.5 be amended, as submitted, effective January 3, 2008.

 

Timetable for Implementation

 

              If the proposed amendment is adopted at the December 2007 meeting, the effective date will be January 3, 2008.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

              Pursuant to Education Law section 207 and Arts and Cultural Affairs Law section 57.23

              1.  Section 185.1 of the Regulations of the Commissioner of Education is amended, effective January 3, 2008, as follows:

§ 185.1  Definitions. 

As used in this Part:

              (a)  .   .   .

              (b)  Records management program means an ongoing, coordinated, administrative effort to systematically manage a local government's records from initial creation to final disposition. A records management program includes, but is not limited to: the legal disposition of obsolete records; the identification and administration of and access to records of enduring value; filing and indexing systems; the use of computer or other technology in information creation, manipulation and storage; the storage and management of inactive records no longer needed for the conduct of day-to-day business in the office; the microfilming of records; the oversight of the creation and use of forms, correspondence and other records [ad] and the provision for protecting vital records.

              (c)  .   .   .

              (d)  .   .   .

              (e)  .   .   .

              (f)  [SARA] State Archives means the New York State Archives [and Records Administration], the organizational unit within the State Education Department which has responsibility to administer the local government records management program.

              (g)  .   .   .

              (h)  [Automated information system] Electronic 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] a computer-based system that supports the acquisition, creation, storage, processing, management of, and/or access to records.

              [(i)  Magnetic, optical or magneto-optical storage media means electronic media, disks or tapes, of different types, manufactured for the purpose of storing data, including images, for retrieval via electronic imaging systems. Optical disks of varying descriptions, including magneto-optical rewritable disks are most commonly used in electronic document imaging systems. Their use is so common, that sometimes these systems are referred to as optical imaging systems.]

              2.  Section 185.2 of the Regulations of the Commissioner of Education is amended, effective January 3, 2008, as follows:

§ 185.2  Designation and responsibilities of records management officers. 

              (a)  Designation of records management officer. 

              (1)  Each local government, except towns, villages and fire districts, shall [, in writing,] designate one local officer to be records management officer.

              (2)  The governing body of each local government, except towns, villages, fire districts, shall notify the commissioner [, in writing,] of the name, title or position in the local government, [mailing address and telephone number] and contact information of the designated records management officer within one month of such designation.

              (3)  Each local government established, or notified by the commissioner that it constitutes a local government (as defined in section 57.17, Arts and Cultural Affairs Law), after April 30, 1989 shall designate a local officer as records management officer within 60 days of its establishment, or after the commissioner's notification. The governing body of each local government established, or notified by the commissioner that it constitutes a local government, after April 30, 1989 shall notify the commissioner [in writing,] of the name, title or position in the local government, [mailing address and telephone number] and contact information of the designated records management officer within one month of such designation or notification.

              (4)  Municipal housing authorities and the Utica [Transportation] Transit Authority, the disposition and reproduction of whose records are subject to sections 59 and 60 of the Public Housing Law and sections 68 and 69 of the Transportation Law respectively, shall not be required to designate a records management officer pursuant to this section.

              (5)  .   .   .

              (6)  .   .   .

              (7)  The governing body of each town, village or fire district, shall notify the commissioner [, in writing,] of the name [, mailing address and telephone number] and contact information of the town clerk, village clerk or fire district secretary, respectively, within one month of that person's taking office.

              (b)  Vacancy in the position of records management officer.  

              (1)  .   .   .

              (2)  Within one month of such designation, the governing body of each local government shall notify the Commissioner of Education [, in writing,] of the records management officer's name, title or position in the local government, [mailing address and telephone number] and contact information.

              (c)  Duties of the records management officer.  The records management officer shall initiate, coordinate and promote the systematic management of the local government's records in consultation and cooperation with other local officers. Duties of the records management officer shall include, but need not be limited to the following:

              (1)  .   .   .

              (2)  .   .   .

              (3)  .   .   .

              (4)  .   .   .

              (5)  .   .   .

              (6)  participating in the development of, reviewing proposals for, or coordinating any micrographics or [automated data processing systems] electronic information systems; and

              (7)  .   .   .

              3.  Section 185.3 of the Regulations of the Commissioner of Education is amended, effective January 3, 2008, as follows:

§ 185.3  Local Government Records Advisory Council. 

              (a)  Membership of the Local Government Records Advisory Council. 

              (1)  The council shall consist of [25] 27 members selected with consideration to achieving [geographic balance] balanced representation and diversity.

              (2)  In addition to selected members, the Commissioner of the New York City Department of Records, a representative of the chief administrative judge, and the New York City Clerk are permanent, statutory members of the Council.  The New York City Clerk is a non-voting member of the Council.

              [(2)] (3) Members shall be appointed for four-year terms provided that the initial appointment to the council, commencing September 1, 1988 shall be for one, two, three or four years. Terms shall be staggered so that approximately an equal number of the council shall be appointed in any subsequent year.

              [(3)] (4)  The commissioner shall designate the chairperson of the Local Government Records Advisory Council. The chairperson shall serve a two-year term and may be reappointed.

              [(4)] (5)  Members of the council shall serve without compensation but shall be reimbursed for necessary travel expenses.

              (b)  Duties of the Local Government Records Advisory Council.   The Local Government Records Advisory Council shall meet at least [four] three times each year and shall have the following responsibilities:

              (1)  .   .   .

              (2)  .   .   .

              (3)  reviewing and advising on the development and delivery of State Archives [and Records Administration's] services to local governments;

              (4)  .   .   .

              (5)  .   .   .

              (c)  Secretariat of the Local Government Records Advisory Council.  [The Local] Government Records Services of the State Archives [and Records Administration] shall serve as secretariat of the Local Government Records Advisory Council, and the [chief ] director of [the Local] Government Records Services or a designee shall serve as its secretary.

              4.  Subdivision (c) of section 185.5 of the Regulations of the Commissioner of Education is amended, effective January 3, 2008, as follows:

              (c)  Notwithstanding any other provision of this section to the contrary, [a public benefit corporation or other special purpose unit of local government located in a city with a population of one million or more, that has adopted and is using its own local records retention and disposition schedule for the disposition of records may use that schedule] a local government may adopt and use a records retention and disposition schedule or individual schedule items in lieu of or in conjunction with a schedule issued by the commissioner provided that the consent of the commissioner is obtained pursuant to this subdivision. The commissioner may grant such consent upon a finding that the local records retention and disposition schedule or schedule item(s) is substantially equivalent to the applicable schedule(s) issued by the commissioner or meets standards of the commissioner as specified in section 185.4 of this Part. Such consent shall remain in effect [for a period of one year from the date that it is granted] until the commissioner withdraws permission to use the schedule or the local government indicates it is no longer using the schedule.

              5.  Section 185.6 of the Regulations of the Commissioner of Education is amended, effective January 3, 2008, as follows:

              § 185.6  Special approvals for disposition of records. 

              (a)  Records not listed on a records retention and disposition schedule.  Records not listed on a records retention and disposition schedule shall not be disposed of without the approval of the commissioner. Whenever a local government record is identified as not being listed on a records retention and disposition schedule, the commissioner, in accordance with section 57.25(2) of the Arts and Cultural Affairs Law, will determine the minimum length of time the record needs to be retained and issue an amendment to all appropriate schedules. [Each amendment shall be reviewed and adopted by formal resolution of the governing body of a local government prior to disposition of any records.]

              (b)  Records damaged by natural or manmade disasters.  Local governments may apply to the commissioner to dispose of records whose retention periods have not expired in cases where those records have been damaged by natural or manmade disaster, and when the information contained in those records is substantially destroyed or obliterated or the records constitute a human health or safety risk. Those records may be disposed of following application to the commissioner and after the consent of the commissioner has been granted.

              (c)  .   .   .

              (d)  Disposition of employee disciplinary, investigative and performance evaluation records.  Notwithstanding any minimum retention period set forth in a records retention and disposition schedule issued by the commissioner pursuant to this Part, a local government may dispose of, or remove certain information from specified employee disciplinary, investigative and performance evaluation records, prior to the time when the appropriate minimum retention period has expired, when this disposition or removal is based on a provision of a collective bargaining agreement in effect between a local public employer [an] and a public employee labor organization.

              6.  Section 185.7 of the Regulations of the Commissioner of Education is amended, effective January 3, 2008, as follows:

§ 185.7  Replacing original records with microforms or electronic images [stored on magnetic, magneto-optical, or optical media]. 

              (a)  Negative microphotographic film.  When a microform [is intended to] will replace an original record having a legal minimum retention period of 10 years or longer[, ] and when the local government still must maintain it for at least 10 years to meet this requirement, or when the records being microphotographed are identified on a records retention and disposition schedule as having a permanent retention period, only a [safety-base] polyester-based black and white silver gelatin microform shall be used as the original camera negative film.

              (b)  Preservation of the camera negative.  When a microform [is intended to] will replace an original record [or when the records being microphotographed are identified on a records retention and disposition schedule as having a permanent retention period], the camera negative shall be used only to produce duplicate copies of the film. Once the duplicates have been made, the camera negative film must be placed in an offsite storage facility that meets standards established by the Commissioner of Education for security, fire protection and environmental control to ensure the preservation of the information on the microform.

              (c)  Microforms to meet quality standards.  When a microform [is intended to] will replace an original record, [or when the records being microphotographed are identified on a records retention and disposition schedule as having a permanent retention period,] the microform shall meet quality standards established by the commissioner for resolution and density to ensure that the film and copies made from it will be clear and legible and to ensure the long-term viability of the film.

              (d)  Targeting and certification of microforms.  When a microform [is intended to] will replace an original record, [or when the records being microphotographed are identified on a records retention and disposition schedule as having a permanent retention period,] the following measures must be taken to ensure access to the information contained on the microform, and the quality and legal admissibility of the microform itself:

              (1)  The records to be filmed shall be arranged[,] and identified [and indexed] to ensure reasonable access to individual documents.

              (2)  Each discrete roll of original negative film[,] and each discrete original negative fiche [, and each discrete strip of original negative film cut up and jacketed to produce fiche,] shall begin with a [signed declaration by the records custodian] target identifying the records being filmed and certifying that the records are being filmed in the normal course of business. Each shall end with a signed declaration by the camera operator identifying the date of filming and the office for whom the film is being produced.

              (3)  .   .   .

              (4)  .   .   .

              (5)  .   .   .

              (e)  Inspection of microforms.  [All] A representative sample of all microforms shall be quality inspected to ensure that the film images meet quality standards set by the commissioner.  Each batch of processed film shall be tested to ensure that processing chemicals which could cause image deterioration are washed from the film. Film and film images that do not meet standards must be reshot before the original document may be destroyed.

              (f)  [Digitized images of public records with a legal retention period of less than 10 years may be stored on a magnetic, magneto-optical or optical computer storage medium. Such electronic records may replace paper originals or micrographic copies of these records. In order to ensure accessibility and intelligibility for the life of these records, local governments must follow the procedures described in section 185.8 of this Part. Guidelines on the use of electronic document imaging systems and optical storage for public records shall be issued by the commissioner.] Digital images of public records.  Digital images of public records may be stored on electronic media, and such electronic records may replace paper originals or micrographic copies of these records.  In order to ensure accessibility and intelligibility for the life of these records, local governments must follow the procedures described in section 185.8 of this Part.

              7.  Section 185.8 of the Regulations of the Commissioner of Education is amended, effective January 3, 2008, as follows:

§ 185.8  Retention and preservation of electronic records [(see section  188.20  of this Title)]. 

              (a) A 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 stores electronic records. 

               (b) A 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 local government, in consultation with the State Archives, must determine that the records will remain usable and accessible by ensuring that the records are retained in currently available file formats and by creating adequate documentation of the records and their systems as defined in subdivision (c) of this section.

              (c) A 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 local government.

              (d) A local government shall prepare and store in a secure off-site facility copies of archival electronic records in order to safeguard against loss. 

              (e) For electronic media that contain permanent or archival electronic records, a local government shall institute maintenance procedures to:

              (1) verify that the media are free of permanent potentially damaging errors;

              (2) rewind under constant tension all tapes at least every two years;

              (3) annually test a three percent statistical sample of all units of media 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 containing a significant number of errors or showing signs of physical degradation;

              (5) copy all permanent or archival electronic records onto new media before the media are expected to fail and always before the media are 10 years old; and

              (6) prepare external labels to identify each media unit, the name of the organizational unit responsible for the records, and the records title. 

              8.  Section 185.9 of the Regulations of the Commissioner of Education is amended, effective January 3, 2008, as follows:

§ 185.9  Storage of records in non-local government facility. 

[Contracts] Agreements for storage of local government records in facilities other than those owned or maintained by the local government shall meet criteria established by the commissioner and must be approved by the commissioner.

              9.  Section 185.10 of the Regulations of the Commissioner of Education is amended, effective January 3, 2008, as follows:

§ 185.10  Local government records management improvement grants. 

              (a)  Eligibility criteria.  To be eligible to apply for a grant pursuant to section 57.35 of the Arts and Cultural Affairs Law, a local government shall have:

              (1)  designated a records management officer in accordance with section185.2  of this Part. This requirement shall not apply to Bronx, Kings, New York, Queens and Richmond Counties, to municipal housing authorities, to the Utica [Transportation] Transit Authority nor to community school districts located in New York City; and

              (2)  adopted the applicable [Records Retention and Disposition Schedule(s)] records retention and disposition schedule(s) issued by the commissioner pursuant to section 57.25 of the Arts and Cultural Affairs Law and section 185.5 of this Part. This requirement shall not apply to municipal housing authorities, to the Utica [Transportation] Transit Authority nor to community school districts located in New York City.

              (b) .   .   .

              (c)  .   .   .

              (d)  Types of projects.  Grants awarded in the 1993-4 State fiscal year and thereafter shall include but not be limited to the following activities:

              (1)  .   .   .

              (2)  .   .   .

              (3)  .   .   .

              (4)  .   .   .

              (5)  .   .   .

              (6)  .   .   .

              (7)  selectively reformatting archival records [, including court records, and depositing a copy with the State Archives and Records Administration];

              (8)  .   .   .

              (9)  .   .   .

              (10)  .   .   .

              (11)  .   .   .

              (e)  .   .   .