Meeting of the Board of Regents | January 2009

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

TO:
FROM:	Jeffrey Cannell
SUBJECT:	Amendment of Part 188 of the Regulations of the Commissioner of Education, Relating to State Government Archives and Records Management
DATE:	December 23, 2008
STRATEGIC GOAL:	Goal 2
AUTHORIZATION(S):

 

Summary

 

Issue for Decision

 

              Should the Regents adopt the proposed amendment of Part 188 of the Regulations of the Commissioner of Education, regarding State government archives and records management?

Reason for Consideration

 

              Implementation of Regents policy.

 

Proposed Handling

 

The proposed amendment will be submitted at the January 2009 Regents meeting to the Committee for recommendation and to the Full Board for action.

 

Procedural History

 

 

������������� The proposed amendment has been recommended by the State Education Department and was discussed by the Cultural Education Committee in November.  State Archives staff prepared these revisions to the current regulations to improve management of records by State agencies and of archival records held in the State Archives, to bring regulations into compliance with current industry standards, and to improve the Commissioner’s oversight of State government records management programs.

Background Information

 

The purpose of the proposed amendment is to revise and update requirements for the management and oversight of State government archives and records management programs.

 

Section 57.05 of the Arts and Cultural Affairs Law establishes the responsibilities of the Commissioner of Education to operate the State archives to preserve State government records of continuing value, to authorize the disposition of State agency records, and to advise agencies on the management of their records.  The law authorizes the Commissioner of Education to promulgate regulations to carry out the purposes of this section of law.

 

              Part 188 of the Regulations of the Commissioner of Education now establish requirements for the management and disposition of State government records and the preservation of records of continuing value in the State archives.  The specific provisions of the proposed amendment will revise terminology to match the current organizational name of the State archives; clarify responsibilities of the director of the State archives to act for the Commissioner in overseeing State government records management programs and in managing the State archives and the State records center; revise procedures and standards for duplicating original records on microforms to meet current industry standards; revise procedures and standards for the retention and preservation of electronic records to meet current industry standards; establish a procedure to authorize agency disposition of damaged records; revise the list of agencies paying annual fees for records management services to match the current organization of State government; and increase the fee assessed agencies for storing records at the State records center.

 

A Notice of Proposed Rule Making was published in the State Register on October 29, 2008.  A copy of the proposed amendment and an assessment of public comment are attached.  Supporting materials are available upon request from the Secretary to the Board of Regents.

 

Recommendation

 

Staff recommends that the Regents take the following action:

 

              VOTED:  That Part 188 of the Regulations of the Commissioner of Education be amended, as submitted, effective February 5, 2009.

 

Timetable for Implementation

 

              If the proposed amendment is adopted at the January 2009 meeting, the effective date will be February 5, 2009.

 

PROPOSED AMENDMENT OF PART 188 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO EDUCATION LAW SECTION 207 AND ARTS AND CULTURAL AFFAIRS LAW SECTION 57.05, RELATING TO STATE GOVERNMENT ARCHIVES AND RECORDS MANAGEMENT

ASSESSMENT OF PUBLIC COMMENT

Since publication of a Notice of Proposed Rule Making in the State Register on October 29, 2008, the State Education Department received the following comments:

COMMENT:

              A State agency questioned the rationale for revising the definition of “records” in Section 188.2 (h) and specifically why references to microforms, computer-readable tapes, discs, film, video and sound recordings are eliminated from the definition.

DEPARTMENT RESPONSE:

              The definition of “records” in Section 188.2 (h) is being revised to match the definition of “records” found in Section 57.05 (2) of Arts and Cultural Affairs Law, the law which provides the statutory basis for the regulations.  The elimination of references to certain media from the definition is not intended to mean that these materials are not records.  Rather, the definition of “records” encompasses all documentary materials, regardless of physical form or characteristics, and therefore continues to establish that microforms, computer-readable tapes, discs, film, video and sound recordings are “records” pursuant to the definition.

COMMENT:

The proposed revision to Section 188.2 (h), by adding the phrase “preserved or appropriate for preservation” to the definition of “records,” can be interpreted as expanding the definition of State agency “records” subject to the regulations.  The revised definition can be interpreted to require that new forms of electronic communications maintained by State agencies are to be included in the definition of “records” and are subject to the regulations, thereby placing a burden on State agencies.

DEPARTMENT RESPONSE:

The revision to Section 188.2 (h) revises the current definition of “records” to match the definition of “records” provided in Section 57.05 (2) of Arts and Cultural Affairs Law.  It is that law which provides the statutory basis for the regulations and definitions of “records” in both locations should coincide.  Adding the phrase “preserved or appropriate for preservation” to the definition of “records” will not expand the meaning of the term, but will instead limit the definition of “records” by specifying that documentary materials must meet this qualifying phrase as well as other portions of the definition in order to be “records” subject to the regulations.  New forms of electronic communications may already meet the test of being “records” under both the existing and the revised definition, so that no change in the “records” status of those media will occur as a result of the revised definition.

COMMENT:

              A State agency noted that Section 188.20 (e) establishes requirements for the management of media used to store “permanent” or “archival” electronic records.  The proposed revision indicates that the requirements are to apply to “electronic” rather than “magnetic computer” media as stated in the current regulations.  However, the requirements in this section are not relevant to “permanent” or “archival” records stored on certain electronic media by the commenting agency.  The agency therefore recommended that the requirements be updated to be more comprehensive and to reflect current technologies.

DEPARTMENT RESPONSE:

              The Department agrees that the revised requirements will not pertain to all electronic media that are used to store “permanent” or “archival” records.  However, the revised requirements are intended to modernize and improve the management of such media based on current industry standards, even though requirements cannot now be written for all electronic media based on current industry standards.  Nonetheless, the Department will continue to review the requirements for managing electronic media so that additional requirements can be proposed in the future for additional forms of electronic media.

COMMENT:

              Section 188.21 (a) of the regulations updates the list of State agencies paying annual fees to the State Education Department for records management services.  The Chief Information Officer/Office for Technology (CIO/OFT) questioned whether adding the agency to the highest fee category is appropriate.  Fees are to be calculated based on the volume of records in the custody of the agency, and the CIO/OFT noted that many of the data and records it stores on behalf of other State agencies remain in the legal ownership of those agencies.  The CIO/OFT recommended that other appropriate factors, beyond the volume of records in agency custody, be considered in setting the fee schedule.

DEPARTMENT RESPONSE:

              In establishing the fee schedule, the State Education Department based fees on the volume of records in the physical or legal custody of the agency, since both factors are significant in determining records management services to be provided to an agency.  On this basis, the CIO/OFT has been correctly placed in the fee schedule.  In the future, the Department will consider whether the standards used for classifying agencies for fee purposes should be revised to include factors other than the volume of records in the custody of an agency.  This future action may result in a re-categorization of some agencies for fee purposes.

COMMENT:

              A State agency questioned the increase in fees charged to State agencies for storing records at the State Records Center, as indicated in Section 188.21 (b), including the use of a uniform fee for all types of media rather than a fee schedule based on media type as is used in the current regulation.  The comment suggested that there should be a cap on fees paid by each agency to assist in agency financial planning.

DEPARTMENT RESPONSE:

              The State Records Center has used the existing fee schedule for more than 20 years.  An increase in fees is needed to continue meeting costs incurred by the State Records Center.  Using a uniform fee schedule regardless of media type enables the Records Center to better calculate storage fees to be assessed to agencies.  Further, the new fee schedule continues to charge agencies less than they would typically pay to store records in commercial records storage facilities, especially because the Records Center charges only for storage while commercial facilities also charge for transactions involving stored records (initial filing, processing, retrieval, delivery, pickup and refilling).  Inasmuch as fees are based on the quantity of records stored by an agency, any agency can cap or reduce its fees by restricting the volume of records it stores at the Records Center.

COMMENT:

              An agency noted that the definition of Executive Chamber records found in Section 188.25 (a) differs from that used in Section 188.2 (h) and suggested that a common definition of “records” be used.

DEPARTMENT RESPONSE:

              Because of the unique status of Executive Chamber records disposition, based on common interpretations of Section 5 of Executive Law, the State Education Department has previously discussed with the Executive Chamber the language to be used in Section 188.25 to guide records disposition.  At the present time, the Department is continuing to use the definition which the Department and the Executive Chamber agreed would be used in regulations.  Future discussions with the Executive Chamber may consider revisions to the definition of “records” and other provisions of Section 188.25.

COMMENT:

              A commenter noted that the reporting requirements for the State University of New York, as indicated in Section 188.28, are being revised from biannual (every six months) to biennial (every 24 months) and questioned the reason for the revision.

DEPARTMENT RESPONSE:

              The Department intended that reports be made every 24 months and is now correcting the inadvertent use of the wrong term (biannual rather than biennial) establishing when those reports are to be made.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AMENDMENT OF PART 188 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

              Pursuant to section 207 of the Education Law and section 57.05 of the Arts and Cultural Affairs Law

              Part 188 of the Regulations of the Commissioner of Education is amended, effective February 5, 2009, as follows:

188.1 Purpose.

              This Part establishes a framework of policies and procedures for the creation, maintenance, disposition, and selective preservation of State government records.  Based on this framework, the State Archives [and Records Administration] will work in partnership with state agencies, and where applicable with the [judicial] judiciary, to carry out records management programs that support effective program management and public services delivery, promote economical and efficient management of information resources, and ensure that records of archival value are identified, protected, and, when appropriate, transferred to the State Archives for preservation.

188.2     Definitions.

              As used in this Part:

              (a)  .   .   .

              [(b)  Automated 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.]

              [(c)] (b)  Archives facility means a facility administered by the [commissioner] director for the preservation and controlled use of archival records transferred from agencies and the judiciary, or a facility that is approved by the [commissioner] director as having an equivalent capacity to ensure the physical security and control of archival records. [State Archives means an archives facility administered by the commissioner.]

              (c)  State Archives means the organizational unit within the State Education Department which has responsibility to administer the State and local government archives and records management programs.

              (d)  .   .   .

              (e)  Director means the Assistant Commissioner of Education who is director of the State Archives [and Records Administration]. 

              (f)  .   .   .

              (g)  .   .   .

              (h)  Records [means all books, papers, microforms, computer‑readable tapes, discs or other media, maps, photographs, film, video and sound recordings, or other documentary materials, regardless of physical form or characteristics, made or received by any agency or by the judiciary in pursuance of law or in connection with the transaction of public business and retained by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities, or because of the information contained therein, but shall not include the records of the Executive Chamber.] means all books, papers, maps, photographs, or other documentary materials, regardless of physical form or characteristics, made or received by any agency of the state or by the judiciary in pursuance of law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities, or because of the information contained therein, but shall not include the records of the Executive Chamber.  Library or museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of blank forms shall not be deemed to constitute records. 

              (1)  .   .   . 

              (2)  Archival records means records that are designated by the [commissioner] director for continuous preservation because they have enduring administrative, legal, fiscal, educational, historical, or other research value to State government and/or its citizens.  Such term is not used as a synonym for computer‑generated records that are stored off‑line. 

              (3)  .   .   .

              (4)  .   .   .

              (5)  .   .   . 

              (i)  Records center facility means a facility maintained by the [commissioner] director for the secure storage, servicing and protection of inactive records prior to their disposition by destruction, transfer to another agency or branch of government, or transfer to an archives facility.

              (j)  .   .   . 

              (k)  .   .   .

              (l)  .   .   . 

              [(m)  State Archives and Records Administration, or SARA, means the organizational unit within the State Education Department which has responsibility to administer the State and Local Government Archives and Records Management programs.]

188.3 Responsibility of the State Archives [and Records Administration].

              (a)  .   .   .

              (b)  The director shall institute a system for the review of agency records management plans and programs to determine agency compliance with the applicable provisions of this Part, to identify opportunities for improving agency records management programs and practices, to propose plans for [SARA] records management assistance and advice, and to ensure the identification and preservation of archival records.   Based on these reviews, the director shall prepare written findings for the commissioner, who shall thereupon report and make recommendations to the head of each respective agency and to the Director of Division of the Budget.

              (c)  As part of this review, and with the understanding that [SARA] State Archives staff shall not disclose confidential information contained in any agency records, the director may inspect the condition and assess the value of agency records which, in his or her opinion, are likely to be archival records.   In lieu of physical inspection of records, the director shall obtain from an agency sufficient information about the general contents and uses of records to permit an evaluation of the research value of the records.

188.4 Establishment of agency records management programs.

              (a)  The head or governing body of each agency shall appoint or designate an agency records management officer, who is authorized to administer the agency's records management program, including liaison with [SARA] the State Archives. The purpose of the agency records management program shall include but need not be limited to the following:

              (1)  .   .   .

              (2)  .   .   .

              (3)  ensuring that the agency cooperates with [SARA] the State Archives to identify, protect, and preserve archival records including those of the agency head and associated staff;

              (4)  .   .   .

              (5)  furnishing to [SARA] the State Archives such reports as the director may request regarding agency records and records management programs and practices.

              (b)  On or before January l, 1993, and thereafter when a change occurs, the head or governing body of each agency shall notify the [commissioner] director [in writing] of the name and title of the [persons] person designated as the agency's records management officer.

188.5 Duties and responsibilities of agency records management officers.

              (a)  The agency records management officer shall plan, promote and monitor the agency records management program in consultation with agency program managers and [SARA] the State Archives.  The duties of the records management officer shall include but need not be limited to the following:

              (1)  participate in the comprehensive records management training program offered by [SARA] the State Archives to the extent necessary to fulfill the applicable requirements of this Part;

              (2)  .   .   .

              (3)  prepare and submit to [SARA] the State Archives proposed records retention and disposition schedules, or other plans which delineate proposed records retention and disposition practices;

              (4)  .   .   .

              (5)  .   .   . 

188.6    General provisions for the identification and disposition of agency records.

              (a)  .   .   .

              (b)  .   .   .

              (c)  [SARA] The State Archives shall issue written guidelines to assist agency staff to distinguish between records and documentary materials that are not records. 

              (d)  .   .   .

              (e)  Each agency shall develop and carry out plans to obtain authorization from [SARA] the State Archives for records retention and disposition schedules or plans governing all records in the agency.  Agencies shall submit proposals to establish such schedules in a manner and form prescribed by the director.   A proposal may be used to obtain ongoing disposal authorization for records which continue to accumulate or to obtain one‑time disposal authorization for records which are discontinued. 

              (f)  .   .   . 

188.7 Review of agency proposals for records disposition authorization. 

              (a)  In reviewing agency records disposition proposals, [SARA] the State Archives shall consider the submitting agency's statutory functions and responsibility.  To be approved, the proposal shall demonstrate:

              (1)  .   .   .

              (2)  that records of temporary administrative, legal and fiscal value are disposed of in accordance with sound records management practices.  When warranted, [SARA] the State Archives shall review selected records disposition proposals to determine whether the records are archival records and warrant preservation in an archives facility. 

              (b)  [SARA] The State Archives, with the consent of the agency records management officer, may revise a records disposition proposal prior to taking final action to authorize disposition. 

              (c)  At least 40 days prior to authorizing an agency records disposition proposal, [SARA] the State Archives shall forward a copy to the offices of the Attorney General and State Comptroller for their review.  The attorney general or a designee shall determine if the proposed records retention period meets legal requirements.  The State Comptroller or a designee shall determine if the proposed records retention period meets fiscal and audit requirements.  No authorization to destroy records will be issued by the [commissioner ] director if either the Attorney General or the State Comptroller, within 30 days after receiving a request, shall advise [SARA] the State Archives that such records should not be destroyed according to the proposed schedule or plan. 

 188.8 [SARA] State Archives response to agency proposals for records disposition authorization.

              (a)  [SARA] The State Archives, upon applying its criteria and after appropriate review by the offices of the Attorney General and State Comptroller as described in section 188.7(c) of this Part, shall return the records disposition proposal to the agency records management officer indicating approval or disapproval of the proposed records retention and disposition schedule or plan. 

              (b)  The agency records management officer shall be informed in writing and shall be entitled to meet with [SARA] State Archives staff to review and discuss the reasons for disapproval of any proposed records retention and disposition schedule or plan.  An agency records management officer shall be entitled to a formal meeting with the director to discuss a disapproved proposal.

188.9 Revising records disposition authorizations. 

              (a)  An agency may request a revision to a records disposition authorization by preparing and submitting a proposal to [SARA] the State Archives following the procedures of section 188.6 of this Part.   Proposals will be processed by [SARA] the State Archives as indicated by sections 188.7 and 188.8 of this Part. 

              (b)  .   .   . 

              (c)  .   .   . 

188.10 Records schedules issued by [SARA] the State Archives. 

              (a)  General records retention and disposition schedules may be issued by [SARA] the State Archives to authorize the retention and disposition of records common to some or all agencies.

              (b)  At least 40 days prior to issuance, [SARA] the State Archives will forward a copy of a proposed general records schedule to the offices of the Attorney General and State Comptroller for their review.  The Attorney General or a designee shall review the schedule to determine if proposed dispositions meet legal requirements.  The State Comptroller or a designee shall review the schedule to determine if proposed dispositions meet fiscal and audit requirements.  If either the Attorney General or State Comptroller, within 30 days after receiving a proposed schedule, shall advise [SARA] the State Archives that any records should not be destroyed according to the proposed schedule, no authorization to destroy such records will be included on a general records retention and disposition schedule issued by [SARA] the State Archives.

              (c)  .   .   . 

188.11 Disposition of records by an agency. 

              (a)  .   .   . 

              (b)  Bulk quantities of disposable paper and microform records shall be recycled or otherwise disposed in an environmentally conscious manner pursuant to a wastepaper recycling program administered by [SARA] the State Archives or an equivalent disposal program administered by the agency. The [SARA] State Archives program will include provisions for the contractor to shred confidential records prior to recycling. 

              (c)  .   .   .

188.12 Emergency destruction of records. 

              (a)  Whenever an agency has in its custody any records that are considered by the [head] records management officer of that agency to be in such a condition that they constitute a menace to human safety or health or to property, the [head] records management officer of such agency may request from the [commissioner] director authorization to destroy or dispose of such records immediately, indicating the conditions which make such immediate destruction or disposal necessary.

              (b)  The [commissioner] director, as soon as possible after receipt of an emergency request to destroy or dispose of records, shall advise the Attorney General and the State Comptroller, or their designees, of the need for the immediate destruction or disposal of the records in question.

              (c)  The Attorney General and the State Comptroller, or their designees, when notified by the [commissioner] director of the request for emergency destruction of records, may immediately notify the [commissioner] director that they have no objection to the destruction or disposal proposed.  Upon receiving such notification, the [commissioner] director may authorize the immediate destruction or disposal of such records. 

188.13 Records damaged or destroyed as a result of natural or manmade disaster. 

              (a)  Whenever records are destroyed in whole or in part by fire or flood or as a result of any natural or manmade disaster, the records management officer of the agency responsible for the custody of the records so damaged or destroyed shall:

              (l)  .   .   .

              (2)  take immediate steps to protect the damaged records from further deterioration in accordance with technical advice furnished by [SARA] the State Archives;

              (3)  initiate action, when appropriate and in accordance with technical advice from [SARA] the State Archives, to retrieve, reassemble and reconstruct the information contained in the damaged or destroyed records. 

              (b)  .   .   . 

              (c)  .   .   . 

              (d)  If the records management officer of the agency responsible for the custody of the records considers that the damaged records can no longer be maintained to meet records retention requirements, the officer may apply to the director for permission to destroy the damaged records.  Such applications should be made by following the procedures indicated in section 188.6 or section 188.9 of this Part, as appropriate, including information describing the nature of the damage and justification for destroying the records.  The director may authorize such destruction based upon evaluation of the damage incurred and the need for destruction of the records in question, in accordance with procedures indicated in sections 188.7 and 188.8 of this Part.

188.14 Operation of records center facilities.

              (a)  The [commissioner] director shall operate records center facilities to provide for the secure, cost‑effective storage of inactive records; to provide secure storage for vital records, for master copies of microforms, for backup copies of electronic records, and for records that require special security or environmental conditions; and to provide records retrieval services at the request of the organizational unit which transferred the records. Records of agencies and the judiciary are eligible for storage at records center facilities.

              (b)  The [commissioner] director, in accepting records of an agency or a unit of the judiciary for storage in a records center facility, assumes responsibility for the physical possession, storage, protection and servicing of such records and the security of the information contained in them, as an agent of the head of the agency or the official of the judiciary transferring such records.

              (c)  [SARA] The State Archives, acting for an agency storing records in a records center facility, shall be responsible for destroying records that are eligible for destruction pursuant to records disposition authorizations.  [SARA] The State Archives shall notify the agency records management officer at least 40 days prior to the intended destruction of agency records stored at a records center facility.  Upon request of the agency records management officer, stating justification for continued retention of the records, the director may authorize the continued storage of the records for a specified period of time.

188.15 Transfer of records to records center facilities. 

              (a)  An agency or a unit of the judiciary proposing to transfer inactive records to a records center facility shall notify [SARA] the State Archives of the proposed transfer in the manner and form prescribed by the director.

              (b)  An agency or a unit of the judiciary shall not ship or cause to be delivered to a records center facility any record which [SARA] the State Archives has not agreed in advance to accept for storage and retrieval.

              (c)  .   .   .

              (d)  .   .   .

188.16 Access to records stored in records center facilities. 

              (a)  .   .   . 

              (b)  .   .   .

              (c)  [SARA] The State Archives will provide retrieval and refiling services for records stored in a records center facility.  Requests for a record stored in a records center facility may be made in person, by telephone, or by mail in a manner and form prescribed by the [commissioner] director.  [SARA] The State Archives will release records only to authorized representatives of the agency or the unit of the judiciary which transferred the records. 

              (d)  In the event that the commissioner or the director is served with a court order or a subpoena, or a request for certification of authenticity, or a written request for access to records, or any legal process which relates to records stored in a records center facility, the commissioner or the director shall immediately notify the agency or the unit of the judiciary which transferred such records to the records center facility.  It shall then be the duty of such agency or unit of the judiciary to respond to the order, request, or other legal process. 

188.17 Review of agency proposals to establish or lease facilities or to contract for services to store records. 

              (a)  .   .   . 

              (b)  The director shall recommend to the [division] Division of the [budget] Budget approval of requests by agencies to establish or lease facilities or to contract for services to store inactive records when greater economy or efficiency can be achieved by such operation than by use of a records center facility and when such operation will adequately provide for the protection and servicing of records.

188.18 [Duplicating and/or replacing agency records by microfilming] Duplicating original records on microfilm.

              [(a)  For the purposes of this section, microfilming means the photographic process of creating miniaturized copies of human-readable records on film and source records means the records that are copied. The provisions of this section apply only to the duplication of source records by microfilming, which is commonly known as source document microfilming, and do not apply to computer‑generated microfilm.]

              [(b)  An agency shall obtain records disposition authorization for source records that are microfilmed and for the microform copy.]

              [(c)  When source records are duplicated on microform, with the intent of destroying the source records and retaining only the microfilm copy, an agency shall establish procedures to ensure that microfilm is an authentic copy of the original records.]

              [(d)  In addition to the other provisions of this section, an agency may destroy source records and retain only the microfilm copy provided that the film images are clear and legible; the master camera negative is used only to produce a printing master from which all additional copies are made; the master camera negative is stored in a records center facility vault or a comparable secure storage facility; and the agency records management officer certifies that microfilm production and processing techniques were selected to ensure that the microfilm will remain usable for the required retention period.]

              [(e)  If archival source records are duplicated on microfilm, an agency must comply with all other provisions of this section and the following:

              (l)  only a safety‑base silver gelatin microform shall be used as the original camera negative film;

              (2)  each batch of processed film shall be tested to ensure that processing chemicals which could cause image deterioration are washed from the film.]

              [(f)  Prior to the destruction of any source records that are to be replaced by microfilm, the director or a designee may inspect the agency microfilm procedures and products to verify compliance with the applicable provisions of this section.]

              (a)  Negative microphotographic film.  When a microform will replace an original record having a legal minimum retention period of 10 years or longer and when the agency 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 or archival retention period, only a polyester-based, black-and-white silver gelatin microform or Ilfochrome (formerly known as Cibachrome) color microform shall be used as the original camera negative film.

              (b)  Preservation of the camera negative.  When a microform will replace an original record, 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 director 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 will replace an original record, the microform shall meet quality standards established by the director 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 will replace an original record, 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 to ensure reasonable access to individual documents.

              (2)  Each discrete roll of original negative film and each discrete original negative fiche shall begin with a 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 agency for which the film is being produced.

              (3)  In addition, each roll of film must have the following targets at the beginning of the roll: density target, resolution target and start target.

              (4)  In addition, each roll of film shall have an end target at the end of each roll.

              (5)  Where needed, roll film shall contain retake and correction targets.

              (e)  Inspection of microforms.  A representative sample of all microforms shall be quality inspected to ensure that the film images meet quality standards set by the director.  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.

[ 188.19 Computer‑generated recording of information on microfilm.

              (a)  The provisions of this section apply only to original records produced by computer‑generated recording of information on microfilm, the resulting product of which is commonly known as computer‑output microfilm (COM).

              (b)  When COM records are identified as archival records, the following shall apply to the production and maintenance of the COM:

              (1) Only a safety-base silver gelatin microform shall be used as the original film copy, which shall be used only to produce a printing master from which all additional copies will be made.  The original film copy shall be stored in a records center facility vault or a comparable storage facility.

              (2) Each batch of processed film shall be tested to ensure that processing chemicals which could cause image deterioration are washed from the film. ]

188.20    Retention and preservation of electronic records.

                            (a)  [A State] An agency [or 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 [uses electronic data processing or electronic optical imaging technologies to maintain or store] stores electronic records. 

                            (b)  [A State] An agency [or 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 State] an agency [or local government], in consultation with [SARA] the State Archives, must determine that the records will remain usable and accessible [through conversion of the records to new system hardware and software] by ensuring that the records are retained in currently available file formats and [through the creation of] by creating adequate documentation of the records and their systems as defined in subdivision (c) of this section. If [a State] an agency cannot [accomplish such a conversion] provide such protection to the records, it shall transfer the archival electronic records to the State Archives in a usable and accessible format. 

                            (c)  [A State] An agency [or local government] shall develop and maintain up‑to‑date documentation about all permanent or archival electronic records sufficient to:

                            (1)  .   .   .

              (2)  .   .   .

              (3)  .   .   .

              (4)  .   .   .

              (5)  .   .   .

              (6)  .   .   .

              (7)  ensure the ongoing retention of records by the [State] agency [or local government] or [, in the case of State agencies,] the authorized transfer of records to an archives facility.

              (d)  [A State] An agency shall prepare and store in a records center [, and local governments shall prepare and store in a secure off-site facility, backup] copies of archival electronic records in order to safeguard against loss. 

              (e)  For [magnetic computer] electronic media that contain permanent or archival electronic records, [a State] an agency [or local government] shall institute maintenance procedures to:

              (1)  verify [no more than six months prior to use] that the [magnetic] media [used to store permanent or archival electronic records] are free of [permanent] potentially damaging errors;

              (2)  rewind under constant tension all tapes [and cartridges] at least every two years;

              (3)  annually test a three percent statistical sample of all [volumes] units of media [, or 10 volumes of each type, of magnetic media, whichever is larger,] 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 [with 10 or more permanent errors per volume] 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 [which provide a unique identifier for each volume] to identify each media unit, the name of the organizational unit responsible for the records, and the [permanent or archival electronic] records title.

188.21 Fees for records management services. 

              (a)  Each agency shall pay to the State Education Department an annual fixed fee to support education and training, disposition analysis and review, technical assistance, and other records management advisory services provided by [SARA] the State Archives. These fees are set on the basis of the total volume of records (active and inactive) in the custody of an agency; higher fees reflect a larger volume of records.  Fees are assessed in accordance with the following schedule:

              (1) Category 1: $20,000 per agency

              Audit and Control, Department of (Office of the State Comptroller)

              Chief Information Officer/Technology, Office for

              Correctional Services, Department of

              Education Department

              Health, Department of

              Labor, Department of

              Mental Health, Office of

              Mental Retardation and Developmental Disabilities, Office of

              Motor Vehicles, Department of

              [Social Services, Department of]

              Taxation and Finance, Department of

              Transportation, Department of

              Workers' Compensation Board

              (2) Category 2: $15,000 per agency

              Alcoholic Beverage Control, Division of

              Criminal Justice Services, Division of

              Environmental Conservation, Department of

              General Services, Office of

              Higher Education Services Corporation

              Insurance Department

              Law, Department of (Office of the Attorney General)

              Parole, Division of

              State Insurance Fund

              (3) Category 3: $10,000 per agency

              Children and Family Services, Office of

              Civil Service, Department of

              Housing and Community Renewal, Division of

              Military and Naval Affairs, Division of

              Parks, Recreation and Historic Preservation, Office of

              Public Service, Department of

              State, Department of

              State Police, Division of

              State University of New York

              Temporary and Disability Assistance, Office of

              [Youth, Division for]

              (4) Category 4: $5,000 per agency

              Agriculture and Markets, Department of

              Alcoholism and Substance Abuse Services, Division of

              Banking Department

              Budget, Division of the

              Dormitory Authority

              Economic Development, Department of

              Elections, State Board of

              Empire State Development Corporation

              Executive Chamber (Office of the Governor)

              Human Rights, Division of

              Lottery, Division of the

              Power Authority of the State of New York

              Probation and Correctional Alternatives, Division of

              Racing and Wagering Board

              Real Property Services, Office of

              Thruway Authority

              (5) Category 5: $2,000 per agency

              Adirondack Park Agency

              [Advocate for Persons with Disabilities, Office of]

              Aging, Office for the

              Agriculture and New York State Horse Breeding Development Fund

              Arts, Council on the

              [Capital Defender Office]

              [Children and Families, Council on]

              Consumer Protection Board

              Correction, Commission of

              Crime Victims Board

              Developmental Disabilities Planning Council

              Domestic Violence, Office for the Prevention of

              Emergency Management Office, State       

              [Empire State Theater Institute]

              Employee Relations, Office of

              Energy Research and Development Authority

              Environmental Facilities Corporation

              Financial Control Board, New York State

              [Governor's Traffic Safety Committee]

Homeland Security, Office of

              Housing Finance Agency

              Housing Trust Fund Corporation

Hudson River Valley Greenway Communities Council

              Inspector General, Office of the

              Investigation, Temporary State Commission of

              Judicial Conduct, Commission on

Lake George Park Commission

              Law Revision Commission

              [Lobbying, Temporary State Commission on]

              Municipal Bond Bank Agency

              [Nelson A.  Rockefeller Performing Arts Center Corporation]

              [Nonviolence, Institute for]

              Northeastern Queens Nature and Historical Preserve Commission

              [Olympic Regional Development Authority]                           

              Public Employment Relations Board

              [Quality of Care for the Mentally Disabled, Commission on]

              Quality of Care and Advocacy for Persons with Disabilities, Commission on

              Regulatory Reform, Office of

              [Science and Technology Foundation]

              Science, Technology and Academic Research, Office of (New York State

              Foundation for Science, Technology and Innovation)

              State of New York Mortgage Agency                        

              State University Construction Fund

              Tax Appeals and Tax Appeals Tribunal, Division of

              [Teachers] Teachers’ Retirement System

              Theatre Institute Corporation, NYS

Thoroughbred Breeding and Development Fund Corporation, New York State

              Tug Hill Commission

              Veterans' Affairs, Division of

              Welfare Inspector General, Office of the

              [Women, Division for]

              (b)  Each agency or unit of the judiciary that stores records in a records center facility shall pay annual fees for storage of such records.  Such storage fees shall be in addition to the annual fixed fees required by subdivision (a) of this section.  Fees for records center facility storage will be calculated based on the average monthly holdings of the records center facilities [according to the following schedule:

              (1)  $2.20 per cubic foot for storage of paper records. 

              (2)  $1.50 per cartridge, tape, or disk for storage of computer or other magnetic and optical media.

              (3)  $.25 per reel or equivalent microform for storage of microfilm.] at $2.90 per item.  An item is defined as a cubic foot for storage of paper records; a cartridge, tape or disk for storage of computer or other magnetic and optical media; a reel or equivalent microform for storage of microfilm; or other item handled.

              (c)  Annual fixed fees, unless waived by the [commissioner] director, will be assessed annually and are payable each State fiscal year.  Records center facility storage fees will be assessed annually and are payable each State fiscal year.  A waiver of the annual fixed fee may be granted if an agency’s total State operations budget is less than $500,000 or if an agency no longer operates as an administratively separate unit of State government or if other extenuating circumstances exist that would make it unduly burdensome for an agency to pay such fee.

              (d)  [SARA] The State Archives may also establish fees for central micrographics and imaging services.  Such fees shall reflect the actual cost of carrying out such services.

              (e)  Revenue generated as the result of contracts administered by [SARA] the State Archives for the recycling or other authorized disposal by sale of bulk quantities of State government records authorized for destruction shall be payable to the State Education Department to support records management services provided by [SARA] the State Archives. 

188.22 Operation of archives facilities.

              (a)  The [commissioner] director shall operate the State Archives facilities for the secure storage, preservation and research use of records deemed by the [commissioner] director to have sufficient administrative, legal, fiscal, educational, historical or other research value to warrant archival retention and administration.

              (b)  The [commissioner] director, in accepting records of an agency or a unit of the judiciary for preservation in an archives facility, assumes official legal and physical custody of the records, including responsibility for access to them; unless the [commissioner] director agrees in advance to preserve and administer records which may remain in the legal custody of an agency or a unit of the judiciary.

              (c)  After records are transferred to an archival facility, the [commissioner] director may destroy from among the archival records duplicate copies, nonrecord material, and any nonvaluable records that are so identified as the records are processed and preserved.

188.23 Transfer of agency records to [an archives facility] the State Archives.

              (a)  Agency records that have been determined to have sufficient value to warrant preservation shall be transferred to [an archives facility] the official legal and physical custody of the State Archives when the originating agency no longer needs to use the records for the purpose for which they were created or when the records are infrequently, if ever, used in the conduct of regular agency business, and when the [commissioner] director determines that protection and research use of the records is most effectively and efficiently accomplished by professional archival administration in an archives facility.

              (b)  Prior to any scheduled transfer of records from an agency to the State Archives, the transferring agency shall notify [SARA] the State Archives using forms and procedures prescribed by the director.  These forms and procedures shall constitute a formal request from the agency for the director to accept custody of a shipment of records consigned to the State Archives.

              (c)  For archival records stored temporarily in a records center facility, [SARA] the State Archives will notify the agency records management officer 40 days prior to the scheduled date of transfer to an archives facility and the agency records management officer shall approve or disapprove such transfer within 30 days of receipt of the notice.  Approval of the notice by an agency shall constitute a formal request from the agency for the director to accept custody of a shipment of records consigned to the State Archives.

              (d)  .   .   . 

              (e)  Records storage equipment received with transfers of records to the State Archives will be retained or disposed of by [SARA] the State Archives unless the transferring agency requests their return. 

188.24  Identification, preservation, and public access to archival records of the judiciary.     

              (a)  At the request of the Chief Judge of the Court of Appeals or a presiding justice of the Appellate Division of the Supreme Court or the Chief Administrator of the Courts, the [commissioner] director shall review and recommend plans and procedures for the disposition of judicial records in order to identify and insure the preservation of those judicial records which warrant archival retention and administration.  In carrying out this function for court records administered by local governments, the [commissioner] director also may consult with the New York State Local Government Records Advisory Council. 

              (b)  Archival records of the Unified Court System may be transferred to the State Archives.  Notwithstanding any other provision of these rules, such archival judicial records shall be administered and made available for public use according to conditions mutually agreed upon by the [commissioner] director and the Chief Judge for records of the Court of Appeals; a presiding justice for records of the Appellate Division of the Supreme Court; and the Chief Administrator of the Courts for all other records of the [United] Unified Court System. 

188.25 Identification, preservation, and public access to archival records of the Executive Chamber.

              (a)  For the purposes of this section, executive chamber records are defined as all books, papers, microforms, computer‑readable tapes, discs or other media, maps, photographs, film, video and sound recordings, or other documentary materials, regardless of physical form or characteristics, made or received by the Governor and his or her  Executive Chamber staff, or made by the Governor and Executive Chamber staff and transmitted by them to the office of the head or governing body of any agency, in connection with the transaction of public business, and retained by the Governor and his or her staff or an agency head or governing body or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities, or because of the information contained therein.  Library or museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of blank forms shall not be deemed to constitute records.

              (b)  Consistent with any policies established by the Governor or his or her designee, the [commissioner] director shall review proposed records retention and disposition schedules or other plans and procedures for the disposition of Executive Chamber records in order to identify and ensure the continued preservation of those Executive Chamber records which warrant archival retention and administration.   In addition, the [commissioner] director shall advise and assist the Governor or his or her designee in the operation of records management programs so that archival records may be readily identified and protected.

              (c)  .   .   . 

              (d)  .   .   . 

188.26 Public access to archival records from State agencies.

              (a)  The director, or a designee, whose office is located in Room [10D45] 9C49, Cultural Education Center, Albany, NY, shall serve as the records access officer for all archival records which are in the State Archives and in the official legal and physical custody of the [commissioner] State Archives.  Access to these archival records shall be subject to the provisions of this section and Part 187 of this Title.  In the event of a conflict, the provisions of this section shall apply. 

              (b)  .   .   . 

              (c)  .   .   . 

              (d)  [SARA reserves the right of the] The records access officer reserves the right to review requested records and to withhold access to records or portions of records that may be exempted from public disclosure by subdivision 2 of section 87 of the Public [Officer's] Officers Law (Freedom of Information Law). 

              (e)  The records access officer shall not restrict or deny access to any records more than 75 years old, except pursuant to statutory provisions [of law] which explicitly prohibit access to the records. 

              (f)  The [commissioner] director may establish conditions to permit controlled access to certain records in the State Archives which may be exempt from disclosure under law, provided that there are no statutory provisions [of law] which explicitly prohibit access to the records.  In establishing such access conditions, the [commissioner] director may enter into a memorandum of understanding with the agency that transferred the records to the State Archives to require the prior review [and approval] of the agency before the records access officer makes a decision to permit access to the records. 

              (g)  .   .   . 

              (h)  Appeals shall be directed to the commissioner [on forms prescribed by him or her, copies of which are available at the State Archives facility. All such appeals shall be delivered to the records access officer or a SARA staff person in the State Archives research room] within 30 days after denial from which such appeal is taken. Appeals shall be determined by the commissioner or an authorized representative. 

              (i)  .   .   . 

188.27 Protection and loan of archival records. 

              (a)  .   .   . 

              (b)  In instances of demonstrated need and subject to terms and conditions set forth in an agreement between [SARA] the State Archives, acting through the director, and an agency or other unit of State government, archival records in the custody of the [commissioner] State Archives may be loaned for official use outside the archives facility. 

              (c)  In instances of demonstrated need and subject to terms and conditions set forth in an agreement between [SARA] the State Archives, acting through the director, and a museum, historical records repository, library, school, or other organization or institution, archival records may be loaned for educational and exhibit purposes. 

              (d)  The [commissioner] director may establish satellite research room facilities, operated in cooperation with other archival, library or educational establishments, and permit the temporary transfer of archival records from the State Archives to such satellite facilities. 

              (e)  The [commissioner] director may [temporarily] deny or restrict use of records in [the State Archives] an archives facility, or require use of copies in lieu of original archival records, when the physical condition of archival records might be endangered by use. 

188.28 Archival records of State University of New York. 

              (a)  The archival records of the State University of New York (SUNY) [central] system administration shall be preserved and administered in a location mutually agreed upon by the SUNY Board of Trustees and the director, and may be transferred to the State Archives.  The archival records of the colleges and universities of the State University of New York shall ordinarily be preserved and administered on‑site at the respective campuses. 

              (b)  The SUNY [central] system administration, in consultation with the colleges and universities, shall prepare and implement standards for the administration of archival records of the colleges and universities, subject to the [commissioner's] director’s approval of such standards. 

              (c)  The Chancellor of the State University of New York, or a designee, shall report [biannually] biennially to the [commissioner] director on activities to administer archival records of the SUNY colleges and universities.

              (d)  Funds made available to the State University of New York for records administration activities pursuant to the documentary heritage program administered by [SARA] the State Archives may be used, among other purposes, to assist the State University of New York to develop the standards cited in subdivision (b) of this section, to guide campuses in addressing the standards, and to prepare [biannual] biennial reports.

188.29 Board of Elections records.

              (a)  Each board of elections established under the provisions of the Election Law may destroy or dispose of any records in its custody providing authorization to do so has been obtained from the [commissioner] director pursuant to the provisions of section 57.05 of the Arts and Cultural Affairs Law.  To obtain such authorization, a board of elections may, by formal resolution, adopt the retention and disposition schedule issued by [SARA] the State Archives in consultation with the State Board of Elections for use by county boards of elections.  A board of elections that does not adopt the general schedule must submit an application, in a manner and form prescribed by the [commissioner] director, requesting authorization to destroy or dispose of records. Such application shall be signed by two members of the board who shall not be members of the same political party. 

              (b)  .   .   .