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General Regulations Recently Adopted

Part 616 Access to Records

Express Terms

6 NYCRR Part 616, Access to Records is amended to read as follows:

Section 616.1 remains unchanged.

Section 616.2 subdivisions (a) and (b) remain unchanged.

Section 616.2 is amended by adding a new subdivision (c) to read as follows:

(c) The Department's Chief Administrative Law Judge shall be the coordinator responsible for reviewing and responding to all Freedom of Information Law requests under this Part for records that are in the custody of the Office of Hearings and Mediation Services ("OHMS"). The Assistant Commissioner for OHMS shall be the FOIL Appeals Officer on any appeal that is taken from a determination of the Chief Administrative Law Judge. Appeals from such determinations shall be sent to:

Assistant Commissioner, Office of Hearings and Mediation Services
Department of Environmental Conservation
625 Broadway, Albany, NY 12233-1010
Telephone number: (518) 402-8537

Section 616.3 subdivision (a) of section 616.3 is amended to read as follows:

(a) Central office.
Department of Environmental Conservation
625 Broadway
Albany, NY 12233-1500

Section 616.3 subdivision (b) is amended to read as follows:

(b) Regional offices.

Section 616.3 subdivision (c) is amended to read as follows:

(c) Regional suboffices.

Section 616.4 remains unchanged.

Section 616.5 subdivision (a) is amended to read as follows:

(a) A request for records must be in writing. Requests for records can be sent to the Department via regular mail at: Records Access Officer, New York State Department of Environmental Conservation, 625 Broadway, 14^th Floor, Albany, New York 12233-1500 or via electronic mail at: foil@gw.dec.state.ny.us.

Section 616.5 subdivisions (b) through (e) remain unchanged.

Section 616.5 is amended by adding a new paragraph (f) to read as follows:

(f) If the Department has reasonable means available, the Department will respond to requests for records by electronic mail unless another form of response is requested.

Section 616.5 is amended by adding a new paragraph (g) to read as follows:

(g) The Department shall provide records on the medium requested by a person, if the Department can reasonably make such a copy or have such copy made by engaging an outside professional service.

Section 616.6 remains unchanged.

Section 616.7 subdivisions (a) through (d) remain unchanged.

Section 616.7 is amended by adding a new paragraph (e) to read as follows:

(e) The determination of any claims relating to trade secrets, confidential commercial information or critical infrastructure information that arise in a proceeding pursuant to 6 NYCRR Part 622 or 6 NYCRR Part 624 are reserved to the Office of Hearings and Mediation Services and the Commissioner.

Section 616.8 subdivision (a) is amended to read as follows:

(a) Denial of access shall be in writing, stating the reasons therefor pursuant to the exceptions set forth in Public Officers Law section 87(2) and advising the person denied access of the right to appeal to the FOIL Appeals Officer.

Section 616.8 subdivisions (b) through (c) remain unchanged.

Section 616.8 subdivision (d) is amended to read as follows:

(d) Except as provided in section 616.2(c), the following person shall hear appeals under the Freedom of Information Law for the denial of access to records, and shall have the authority to delegate all or part of the decision making authority of the FOIL Appeals Officer, when deemed appropriate and/or necessary:

FOIL Appeals Officer
Department of Environmental Conservation
625 Broadway, Albany, NY 12233-1500
Telephone number: (518) 402-9522

Section 616.8 subdivision (e) is amended to read as follows:

(e) The time for deciding an appeal by the FOIL Appeals Officer shall commence upon receipt of written appeal identifying:

(1) The date and location of requests for records;
(2) The records that were denied; and
(3) The name and return address of the appellant.

Section 616.8 subdivision (f) is amended to read as follows:

(f) The department shall transmit to the Committee on Open Government copies of all appeals upon receipt of an appeal. Such copies shall be addressed to:

Committee on Open Government
Department of State
One Commerce Plaza, 99 Washington Avenue
Albany, NY 12231

Section 616.8 subdivision (g) is amended to read as follows:

(g) The FOIL Appeals Officer, or as provided in section 616.2(c) the assistant commissioner for OHMS, shall inform the appellant and the Committee on Open Government of the determination, in writing, within 10 business days of receipt of an appeal. Failure by the department to conform to this requirement shall constitute a denial of records.

Section 616.8 subdivision (h) is amended to read as follows:

(h) Except as provided in section 616.7 of this Part, the FOIL Appeals Officer, or where applicable the assistant commissioner for OHMS, in making a final denial of access to a requested record, as provided for in subdivision (g) of this section, shall inform the requester of the right to court review as provided for in article 78 of the Civil Practice Law and Rules.

Section 616.8 is amended by adding a new paragraph (i) to read as follows:

(i) With respect to appeals from records in the custody of OHMS, the Assistant Commissioner for OHMS shall serve as FOIL Appeals Officer.

Section 616.9 subdivisions (a) and (b)(1) remain unchanged.

Section 616.9 subdivision (b)(2) is amended to read as follows:

(2) A fee equal to the actual cost of reproducing any other records.

Section 616.9 subdivision (b)(3) is amended to read as follows:

(3) To determine the actual cost of reproducing records, the department may include only:

Section 616.9 subdivision (b)(3) is amended by adding a new paragraph (i) to read as follows:

(i) an amount equal to the hourly salary attributed to the lowest paid agency employee who has the necessary skill required to prepare a copy of the requested records;

Section 616.9 subdivision (b)(3) is amended by adding a new paragraph (ii) to read as follows:

(ii) the actual cost of the storage devices or media provided to the person making the request in complying with such request;

Section 616.9 subdivision (b)(3) is amended by adding a new paragraph (iii) to read as follows:

(iii) the actual cost to the agency of engaging an outside professional service to prepare a copy of a record, but only when an agency's information technology equipment is inadequate to prepare a copy, if such service is used to prepare the copy; and

Section 616.9 subdivision (b)(3) is amended by adding a new paragraph (iv) to read as follows:

(iv) preparing a copy shall not include search time or administrative costs, and no fee shall be charged unless at least two hours of agency employee time is needed to prepare a copy of the record requested. A person requesting a record shall be informed of the estimated cost of preparing a copy of the record if more than two hours of an agency employee's time is needed, or if an outside professional service would be retained to prepare a copy of the record.

Section 616.10, Section 616.20 and Section 616.21(a) remain unchanged.

Section 616.21 subdivision (b) is amended to read as follows:

(b) The address of the privacy compliance officer is:

Records Access Officer
Department of Environmental Conservation
625 Broadway
Albany, NY 12233-1500

Section 616.22 remains unchanged.

Section 616.23 subdivision (a) is amended to read as follows:

Records shall be made available at the main office of the department, and whenever practicable at a regional office convenient to the requester. The addresses for these locations are listed in section 616.3 of this Part.

Section 616.23 subdivision (b) is repealed.

Sections 616.24, 616.25, 616.26 and 616.27 remain unchanged.

Section 616.28 subdivision (a) is amended to read as follows:

(a) Any person denied access to a record or denied a request to correct or amend a record or personal information pursuant to section 616.27 of this Part may, within 30 business days of such denial, appeal to the FOIL Appeals Officer as provided in section 616.8 of this Part, except for such records that are in the custody of OHMS, the Assistant Commissioner for OHMS shall serve as the FOIL Appeals Officer.

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