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City Council Testimony:
The New York Civil Liberties Union

APRIL 5, 2002

There is an important public interest that is served by the professional administration and permanent preservation of the historically valuable public records of the City of New York. There is an equally important public interest served by making those records easily and equally accessible to academicians and members of the general public. These City records document our pluralistic form of government, serve as the collective memory of our civilization and make possible the transmission of our democratic cultural heritage from generation to generation. Individually and collectively, these records are priceless, unique, and are among the richest of our City's legacies. See www.nyc.gov.html.doris. Accordingly, the NYCLU is pleased to submit this testimony addressing proposed legislative proposal (Intro. 102) regarding the custody, control and treatment of the archival records of the City of New York.

The NYCLU commends the City Council Government Operations Committee for conducting hearings in February concerning the treatment of the City's archival records. The NYCLU also commends the Chair of the City Council Government Operations Committee, Bill Perkins, on his introduction of legislation to ensure that the archival records of the City of New York remain in the direct custody and control of the City of New York and are available to historians and members of the general public alike.

In this testimony, we focus principally on two issues raised by Intro. 102. The first concerns the amendment of section 3003 of the Charter which addresses the procedures and standards for the delegation of archival functions to other, non-municipal, archival establishments. The second issue relates to the definition of "record" as set forth in the legislation at issue.

Section 3003(5)

Sections 3003(5)(a) and 3003(5)(b), read together, prohibit the transfer of an elected official's records to any entity that is not "existing under public auspices" and that is "controlled" by that official's "former staff or appointees, spouse, domestic partner or child." The term "existing under public auspices" is undefined and vague. We suggest that that term be defined specifically to include only a governmental entity located in New York City, or a public university located in New York City, or the New York Public Library.

Section 3011(2)

The DORIS definition of "record" perpetuated by this legislation excludes entire categories of documents that are considered public documents under FOIL. For purposes of FOIL requests, Section 86(4) of the Public Officer Law defines a "record" as any "information kept, held, filed, produced or reproduced by, with or for an agency in any physical form whatsoever."

As noted in the testimony the NYCLU previously has submitted to this Committee, the FOIL "record" definition rests on the conceptual understanding that all documents in the possession of a City agency or in a depository controlled by a City are "agency records" and subject, per se, to public access, guided by FOIL's clear exemptions from disclosure. Under the definition of "record" set forth in section 3011(2) of the Charter and perpetuated by this legislation, the category of records to be made available and committed to the control of governmental archivists, and thereby available to the public, is constricted to a range of documents far narrower than those that would have been made available to the public under the FOIL process before those agency documents were transferred to the custody and control of DORIS. Under section 3011(s) of the Charter, "record" is defined as any "materials made or received pursuant to law or ordinance or in connection with the transaction of official city business."

The public's broad right of access afforded by FOIL to "agency records" that were maintained in the offices of public officials should not be constricted simply because an agency's records have been designated as archival material and transferred to DORIS. Accordingly, we recommend that the FOIL "record" definition be adopted as the DORIS definition of "record."

Other Technical Recommendations

Finally, the NYCLU makes the following technical recommendations regarding the current draft of the bill:

Section 3003(5)

1. Subsection 5(a) addresses only those records generated by any "city elected officer" and his/her staff and appointees. We recommend that this subsection be made applicable to all officers and agencies whose documents are subject to review and retention on the basis of archival significance.

2. Subsection 5(a) restricts the transfer of archival materials to DORIS to the expiration of an elected official's "last term of office." We recommend that this section mandate transfers either at the end of each term of office or earlier, all pursuant to an approved records transfer schedule as set forth in section 1133(b) of the Charter.

3. Subsection 5(a) appears to vest the DORIS commissioner with unilateral authority to establish, or modify, an agency's records transfer schedule. If so, the provision is inconsistent with section 1133(b) of the Charter which obligates the DORIS commissioner to establish, or modify, "approved records transfer schedules" only in consultation with Corporation Counsel and the appropriate head of the agency whose records are being considered for transfer to DORIS.

4. Subsection 5(b) should be amended to ensure that DORIS train, supervise and set standards for any non-municipal archival establishments to whom the functions of DORIS are delegated under §5003, subsections 4 and 5(a).

Section 1133(b)

We support the mandate that archival materials be transferred immediately to DORIS, pursuant to an approved records transfer schedule. We suggest that the time periods be set forth with greater specificity and respectfully refer the Committee to our proposed legislation on this point.

Conclusion

The NYCLU strongly supports a legislative enactment that will both redress and prevent any future unjustified and irresponsible removal of official City records from the direct care and custody of City officials in an accessible municipal archive. Accordingly, the NYCLU urges the City Council Government Operations Committee to amend the provisions of Intro.102, in the manner suggested here, or, in the alternative, the Committee may want to consider other suggestions drawn from the NYCLU's model legislation appended here.

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