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City Council Testimony:
Jeffery M. Flannery on behalf of The Mid-Atlantic Regional Archives Conference

APRIL 5, 2002

Good afternoon. My name is Jeffrey Flannery, and I serve as Chair of the Mid-Atlantic Regional Archives Conference (MARAC). MARAC is an organization of 1,000 professional archivists who work and live in a region that extends from New York to Virginia, and includes seven states and the District of Columbia.

I am grateful for the opportunity to speak before you today. As you may recall, in February, before this same committee, representatives of MARAC joined with other concerned organizations and individuals to protest the removal of the mayoral records of the Rudolph Giulaini administration from the custody of the New York City Department of Records and Information Services (DORIS), to a private agency. MARAC applauds the efforts of the City Council to rectify these unfortunate circumstances, and has reviewed the proposed amendment to the city charter in relation to the custody and control of city records of historical, research, cultural, or other important value.

First and foremost, MARAC supports the proposed legislative remedy in order to prevent the kind of actions which initiated the present controversy. The main benefit of this legislation will be to give clear direction to city officials as to the appropriate manner to retain or dispose of city records. It will reinforce the City's commitment to free and open access to public records. With this in mind, MARAC offers the following comments on some of the specifics of the draft legislation:

§3003(5b) - Powers and Duties - The wording "must exist under public auspices" stipulates that a private entity cannot take over the responsibilities of DORIS since ultimately some public body would have to be in charge. However, we suggest that the phrase "under the public auspices of DORIS" or "under the public auspices of the City of New York" be used in its place. Otherwise, "public auspices" could be interpreted to be another public entity besides the City, and MARAC is concerned with the erosion of DORIS's responsibility as the principal caretaker of the City's records.

§3004(a) and §3004(b) - Management of Records by DORIS and Restrictions on transferred records -- MARAC supports the addition of these two sections as drafted by the New York Civil Liberties Union (NYCLU), which generally requires that "The Department of Records and Information Services shall have an affirmative duty to make such records available to the public as rapidly and completely as possible consistent with the provisions of this Chapter and Chapter 49." The heart of this issue is access, and the Council's legislation will be greatly strengthened by adhering to the administrative and judicial procedures of sections of the New York State Freedom of Information Law (FOIL).

§3008 - Rules and Regulations -- MARAC supports the NYCLU draft which would propose the following modifications in this section: "The commissioner shall promulgate rules and regulations to effectuate the purposes of this chapter, except that rules and regulations relating to access to records and/or the disposal of records pursuant to section 1133 and section 1133(a) shall be issued by the commissioner after the consultation with the corporation counsel, the City Council, and the comptroller." The inclusion of this clause guarantees records are not unilaterally disposed.

§3011- Definitions - MARAC favors the reconciliation of the Council's draft with the NYCLU draft of the definition of the word "record ." The NYCLU's definition is based on the definition in FOIL; the city's is based on the definition in the Local Government Records Law. The problem here is that the definitions differ slightly, and one is legally required by FOIL, and the other by the Local Government Records Law. Language for a possible compromise would say, "For the purposes of access, a record is defined as in FOIL", then insert any additional clarifying language, such as a note that this includes the records of Borough Presidents. This would be followed by a statement which would say, "For the purposes of retention, a record is defined as in Article 57-A, of the Arts & Cultural Affairs Law, section 57.17", then provide any clarifying information. This may be a bit awkward and inelegant, but it will be the most accurate.

MARAC believes these clarifications will result in a better law and is willing to lend what assistance it can to see this legislation take effect. Most importantly, MARAC wishes that whatever legislation is enacted by City Council, it will ensure that the public's right of access to public records be safeguarded. The membership of MARAC recognizes this is a troubled time in the history of New York City and the country, but the basic idea of public access to government records is a fundamental principle for any society which calls itself free, and if this principle is diminished, our public life will truly suffer.

Thank you.

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Defending the archives contract: Saul Cohen, President, Rudy Giuliani Center for Urban Affairs