ITS Freedom of Information Law (FOIL) Regulations

TITLE 9. EXECUTIVE DEPARTMENT
SUBTITLE N OFFICE FOR TECHNOLOGY
PART 550.
PUBLIC ACCESS TO THE RECORDS OF THE OFFICE FOR TECHNOLOGY

 

(Statutory authority: Public Officers Law, art. 6; Executive Law, s206-a[11]; s208)

Section 550.1 Purpose and scope.

The people's right to know the process of government decision-making and the documents and statistics leading to determinations is basic to our society. This Part provides information concerning the procedures by which records may be obtained from the New York State Office for Technology.

Section 550.2 Definitions

For purposes of this Part:
(a) the term executive deputy commissioner means the executive deputy commissioner of the New York State Office for Technology.
(b) the term office means the New York State Office for Technology.
(c) the term record means a record as defined in section 86 of the Freedom of Information Law.
(d) the term records access officer means an employee of the office designated by the executive deputy commissioner to receive and respond to inquiries to inspect and copy those records in the possession of the office.

Section 550.3 Duties of the records access officer.

The records access officer shall:
(a) coordinate the office's response to public requests for access to its records;
(b) provide information concerning the nature and location of records;
(c) maintain a current list of records, indexed according to subject matter, for public inspection;
(d) respond to all inquiries relating to the availability to the public of the office's records pursuant to the Freedom of Information Law;
(e) receive and process requests for access to records in the manner prescribed by this Part;
(f) receive and process requests for the copying of records in the manner prescribed by this Part;
(g) have responsibility for the safekeeping of records under inspection;
(h) have the cooperation and assistance of all personnel of the office in the performance of his or her functions under this Part;
(i) designate one or more members of the office, as he or she deems necessary, to serve as assistant records access officer and such assistant or assistants shall have only those functions and responsibilities which are expressly delegated to such assistant or assistants by the records access officer; and
(j) charge and receive for the copying or inspection of records the fees prescribed by this Part.

Section 550.4 Subject matter list.

(a) The records access officer shall maintain and make available for public inspection and copying a current list, by subject matter, of those records, as enumerated within the Freedom of Information Law, which are available for public inspection. The list shall be sufficiently detailed to permit the requester to identify the file category of the record sought.
(b) The subject matter list shall be updated periodically, and the date of the most recent updating shall be listed first. The subject matter list shall be updated no less frequently than twice per year.

Section 550.5 Requests for public access to records.

(a) A request for records within the possession of the office shall be in writing. Such request shall be addressed to the Records Access Officer, New York State Office for Technology, State Capitol/Empire State Plaza, Post Office Box 2062, Albany, New York 12220.
(b)

(1) The records access officer may permit individuals to act as agent for or authorized representative of a requester for access to records.
(2) In addition to the written request for access to records, the records access officer may require such agent or authorized representative to complete a written agency form prescribed by the office before acting upon the request.

(c)

(1) The records access officer shall respond promptly to a request for access to records. The records access officer’s response to the request shall be made no more than five business days after the day of the receipt of the request.
(2) If the office does not make records available or deny access to records sought within five business days of the receipt of a request, the records access officer’s response shall acknowledge the receipt of the request and state the approximate date when it is expected that the request will be granted or denied.
(3) In the event that the office receives a request for another agency’s data that is in the possession of the office because it administers, operates or manages a statewide technology program, the records access officer will, pursuant to section 208 of the Executive Law, transmit, within five days, in writing, the request to the agency that owns the data, accompanied by a copy of section 208 of the Executive Law. The records access officer will also send a copy of the transmittal to the requester.
(4) So that the personnel of the office can locate records within a reasonable time, a request for access to records shall be sufficiently detailed to identify the records and shall, if possible, include the article and section of the law to which the requested records relate. In addition, if pertinent to the request, the requester shall, if possible, include descriptive words and dates or other information that will help identify the record or records.
(5) No records may be removed by the requester from the office where the record is located.
(6) Upon failure to locate records, the records access officer shall inform the requester that:

(i) The office does not have possession of the requested records; or
(ii) The requested records cannot be found after diligent search.

(7) The records access officer shall, upon request, certify to the correctness of the copies of the records, that the office does not have possession of the requested records, or that the requested records cannot be found after diligent search.

(d) In accordance with the provisions of subdivision 2 of section 89 of the Freedom of Information Law and in conformity with any guidelines as may be promulgated by the Committee on Open Government regarding the prevention of unwarranted invasions of personal privacy, the records access officer shall delete from any requested record identifying details the disclosure of which would result in an unwarranted invasion of personal privacy prior to making such record available for inspection and/or copying. The records access officer shall also delete from any requested record any and all such other information the disclosure of which is prescribed by any other laws of the State of New York or the United States.

Section 550.6 Inspecting and copying of records.

(a) If access to records is granted, records may be inspected or copied by the public at: Swan Street Building, Core 4, Albany, New York 12223. Such records may be inspected or copied in the office of the records access officer every day that the office is open for business during the hours 9 a.m. through 12 p.m. and 1 p.m. through 4 p.m. At the sole discretion of the records access officer, such records may also be inspected or copied in an office of an assistant records access officer.
(b) If a record is of a type available for inspection under the Freedom of Information Law but contains information, details, and/or particulars requiring deletion, a requester shall only be permitted to inspect a copy of the record with deletions.
(c) Records inspected may be copied in the following manners:

(1) By the person inspecting the record in his own handwriting or by his or her own mechanical or electronic means, provided, however, that the use of such mechanical or electronic means does not disrupt the normal functioning of the office.
(2) The records may be copied for the person inspecting the records by personnel of the office using the office’s mechanical reproduction equipment, provided that:

(i) The copying of records by personnel of the office will be allowed only when such copying will not delay the use of the office's mechanical reproduction equipment for office business; and
(ii) Copies of records produced by personnel of the office using the office’s mechanical reproduction equipment will be provided only when the fee for such copies as prescribed by this Part has been paid to the records access officer.

(d) No record may be removed from the office where the record is kept.

Section 550.7 Protection of trade secrets.

(a) In addition to the prohibitions on disclosure described in subdivision (d) of section 550.5 of this Part, the records access officer may deny access to records or portions thereof that are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which, if disclosed, would cause substantial injury to the competitive position of the subject enterprise.

(1) Any person who submits information to the office, which is not otherwise exempted from disclosure under the laws of the State of New York or the United States, may request that the records access officer except such information from disclosure as a trade secret pursuant to sections 87(2)(d) and 89(5) of the Freedom of Information Law. Where the request itself contains information which, if disclosed, would defeat the purpose for which the exception is sought, such information will also be excepted from disclosure.
(2) The request to the records access officer for an exception must be in writing, specify the information or portions thereof for which the exception is requested, and state the reasons why such information should be excepted from disclosure.
(3) Records or parts of records identified as trade secrets at submission shall continue to be charged to the custody of the head of the division, bureau or office with which the record is filed. That individual shall specify which persons subject to his or her supervision may inspect such records. The executive deputy commissioner, the records access officer, the records appeals officer and his or her assistant or assistants shall be entitled to inspect such records.

(b) The records access officer shall, at any time, or upon receipt of a request for disclosure of such a record, determine whether the request for exception will be granted, continued, terminated or denied. Before doing so, such officer shall:

(1) notify the person who requested the exception that a determination is to be made, and of such person's right to submit a written statement within 10 business days of receipt of the notice, regarding the necessity for granting or continuing the exemption from disclosure;
(2) permit the person who requested the exception, within 10 business days of receipt of notification from the department, to submit a written statement of the necessity for the granting or continuation of such exception; and
(3) within seven business days of receipt of such written statement, or within seven business days of the expiration of the period prescribed for submission of such statement, issue a written determination granting, continuing or terminating such exception and stating the reasons therefor; copies of such determination shall be served upon the person, if any, requesting the record, the person who requested the exception, and the Committee on Open Government.

(c) A denial of an exception from disclosure under subdivision (b) of this section may be appealed by the person submitting the information, and a denial of access to the record may be appealed by the person requesting the record in accordance with the procedure outlined in section 550.8 of this Part.

Section 550.8 Procedure to be followed in the event of denial of access to records or denial of exception from disclosure.

(a) The executive deputy commissioner hereby designates the Deputy Counsel in the Office of Counsel of the office as "records appeals officer" to decide appeals from denial of access to records or denial of exception from disclosure under the Freedom of Information Law. The address of the records appeals officer is: Deputy Counsel, Office of Counsel, New York State Office for Technology, State Capitol/Empire State Plaza, Post Office Box 2062, Albany, New York 12220. The records appeals officer may designate one or more members of the office, as he or she deems necessary, to serve as assistant records appeals officer and such assistant or assistants shall have only those functions and responsibilities which are expressly designated to the assistant or assistants by the records appeals officer.
(b) Denial of access to requested records and denial of exception from disclosure by the records access officer shall be in writing, stating the reason for the denial and informing the requester of his or her right to appeal the denial to the records appeals officer. The written notice of denial shall also contain the name, title, business address, and business telephone number of the records appeals officer. Notice of such denial shall also be given to the agent or authorized representative of the requester, if any.
(c) A person who has been denied access to a requested record by the records access officer shall have the right to appeal the denial to the records appeals officer within the following limitations of time:

(1) If the records access officer responds to the request with a written statement of denial of access to records within the required five business days, said five day period computed as provided in section 550.5(c)(1) of this Part, or by the approximate date identified in the response acknowledging receipt of the request, a written statement of appeal must be received by the records appeals officer 30 days from the date of denial of access to the requested record.
(2) In the event that the records access officer fails to produce a record or deny a request for access to records by the approximate date identified in the response acknowledging receipt of the request, the request shall be deemed denied, and a written statement of appeal must be received by the records appeals officer within 30 days following the 10th business day from the approximate date provided by the records access officer at the time application for access is made.
(3) If the records access officer fails to process a request for records without explanation or reason to the requester thereof within five business days, said five day period computed as provided in section 550.5(c)(1) of this Part, the request shall be deemed denied, and a written statement of appeal must be received by the records appeals officer 30 days from the date of the application for access to records.

(d) A person who has been denied an exception from disclosure pursuant to section 550.7 of this Part shall have the right to appeal the denial by filing a written statement of appeal from the determination of the records access officer with the records appeals officer, within seven business days of receipt of the written notice denying such request.
(e) In order to perfect a proper and timely appeal, the written statement of appeal received by the records appeals officer from the appellant must set forth:

(1) the date and the location of the application for request to access to the office's records, or for request for an exception disclosure;
(2) the record, identified with particularity, to which the requester was denied access, or was denied an exception; and
(3) the name and return address of the requester.

(f) The records appeals officer shall, within 10 business days, excluding the day of the proper commencement of the appeal, determine the right of access to records, or, within seven business days, excluding the day of the proper commencement of the appeal, determine the right of exception from disclosure. Where he decides the denial of access was improper, he shall order the records access officer to allow the requester access to such records. Where he or she decides the denial of exemption from disclosure was improper, he or she shall order the records access officer to except such records from disclosure. Where he or she decides the denial of access was correct, he or she shall state the reason or reasons therefor and mail a copy of his or her decision to the appellant on or before the aforesaid period by registered or certified mail of the United States Postal Service and to his or her agent or authorized representative, if any, by ordinary mail. In addition, the records appeals officer shall immediately, upon receipt, forward a copy of such appeal to the Committee on Open Government. He or she shall also forward to such committee a copy of the ensuing decision.
(g) A final denial of access or of exception from disclosure to a requested record by the records appeals officer is subject to court review as provided under section 89 of the Freedom of Information Law.

Section 550.9 Fees.

Except where fees or exemptions from fees have been established by statute the following rules shall apply to fees:
(a) There shall be no fee charged for:

(1) inspection of the itemized record, prepared pursuant to section 87(3)(b) of the Freedom of Information Law, setting forth the name, address, title, and salary of each officer or employee of the office;
(2) inspection of the current list by subject matter of all records in the possession of the office that the office is required to maintain under section 87(3)(c) the Freedom of Information Law;
(3) inspection of records of the office that are required to be disclosed under the Freedom of Information Law where no deletion of any part of the contents thereof is permitted or required; or
(4) a certification pursuant to this Part.

(b) The fee for a copy of a record which is of a size not exceeding 9 inches in width by 14 inches in length shall be $.25 per page.
(c) The fee for copies of records not covered by subdivision (b) shall not exceed the actual cost of reproducing the record, excluding, however, fixed costs of the office such as operator salaries.
(d) The fee for the inspection of a copy of a record where deletion of any part of the contents thereof is permitted or required shall be the fee prescribed in subdivision (a) or (b) of this Section.

Section 550.10 Public notice.

The records access officer shall cause public notice to be posted in all buildings occupied by the office, informing members of the public of:
(a) the records access officer’s business location and business telephone number;
(b) the time and place records will be made available for inspection and copying;
(c) the right to appeal by any person denied access to records; and
(d) the name, business address, and business telephone number of the records appeals officer.