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.
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.
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:
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).
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.
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.