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City Council Testimony:
Janet Linde, Representative of the Archivists Round Table of Metropolitan New York

APRIL 5, 2002

Oversight Committee on Governmental Operations: Draft legislation "to amend the New York City charter in relation to the custody and control of city records of historical, research, cultural or other important value" Friday, April 5th - 1:00 PM Council Chambers City Hall Chairperson: Bill Perkins

Testimony Presented by Janet Linde, Representative of the Archivists Round Table of Metropolitan New York before the Committee on Governmental Operations, Friday, April 5th, 2002, Regarding draft legislation "to amend the New York City charter in relation to the custody and control of city records of historical, research, cultural or other important value."

The Archivists Round Table of Metropolitan New York would like to thank the Council for drafting this significant legislation and for the opportunity to again submit testimony on this important issue. This legislation will strengthen the foundation set down in the City Charter for the proper administration of public records and the preservation of invaluable historical documents. It is also our expectation that the legislation as ultimately passed will help to ensure public access to the records of City government. Finally, with reference to our testimony on February 20, 2002, ART remains hopeful that this legislation will provide the legal basis for the reclamation of the records of the Giuliani mayoral administration and their restoration to the Department of Records and Information Services (DORIS).

We would like at this time to submit the following comments on specific portions of the draft legislation:

§3003 Powers and Duties.

(5): This section concerns us because the designation that the outside agent "must exist under public auspices" will be open to interpretation unless it is more specifically defined. For example, a not-for-profit organization is required to register itself in the public realm and could argue that because of those requirements it "exists under public auspices." In addition, the proposed legislation does not make it clear enough that DORIS will be unequivocally in charge of any work that is carried out by an outside agent. The approval of the plan by the law department also appears to bypass DORIS, and we question the necessity of including the law department here because presumably they review and approve all city contracts.

We have also reviewed the language drafted by the New York Civil Liberties Union and find it to be stronger than the Council version. We believe that it reflects the details of the successful cooperative efforts that have been carried out by DORIS with the LaGuardia Community College Archives. not I'll see you in three years. This was a working relationship that we established." ART believes that the requirement for direct training and supervision by DORIS and the submission of quarterly reports to the Commissioner of Records will help to insure active control of the process by DORIS.

§ 3004 Department; duties.

ART supports the clarification of language in this section to make it more explicit that the provision of access to records by the public in a public facility is a core operation of DORIS.

The references to the Board of Estimate in this section should be removed and replaced by references to the Council.

§ 3008 Rules and regulations.

ART supports the NYCLU modifications of this section, as follows:

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 eleven hundred thirty-three and section eleven hundred thirty-three (a) shall be issued by the commissioner after consultation with the corporation counsel, the City Council, and the comptroller.

We believe that this change will help to ensure that no unilateral decisions concerning access to records and the retention or disposal of records are made.

§ 3010 Municipal archives reference and research fund.

ART supports the addition of records management to the programs that will be supported by this fund.

§ 3011 Definitions.

2. ART agrees with MARAC that a definition of records should include language from both the FOIL and the Local Government Records Law (Article 57-A, Arts & Cultural Affairs Law, section 57.17). However, we stress that the decisions based on these definitions, regarding the identification of public records and private papers, should be made by archivists and not by the officials or their agents.

3. ART supports the addition of "reformatting" to this definition. This is a basic Records Management function.

5. (1) The term "temporary records" has not been defined in this context. Given that it does not appear to be necessary here, it should be removed to prevent confusion as to whether it refers to non-permanent or non-archival records.

ß § 1133 Transmission of reports; disposal of records; destruction of other materials.

b. ART supports strengthening this section to clarify the chain of custody from the City government to DORIS. The only change that we would like to see in the Council's draft is the removal of the phrase "upon request of the commissioner of records and information services." We would like to see this language replaced with wording that sets a schedule for transfers and fortifies the role of approved records schedules, such as that proposed by the NYCLU:

Records retained for historical or research purposes shall be transferred to the municipal archives for permanent custody pursuant to an approved records transfer schedule, subject to the conditions set forth herein. Records to be retained for historical or research purposes shall be transferred to the municipal archives within 30 days of the determination that such records shall be retained, except that, upon the expiration of any city elected officer's term of office, or upon any earlier date agreed upon by the commissioner, all records kept, held, filed, produced or reproduced by, with or for such officer or his/her staff and appointees shall be delivered immediately to the municipal archives. The city of New York shall reserve and retain complete ownership, possession, and control of all records to be retained for historical or research purposes, and such records shall be administered in accordance with the provisions of this chapter and chapter seventy-two of the city charter.

§ 5. Effective Date.

ART hopes that one of the outcomes of this legislation will be the return of the records of the Giuliani mayoral administration to the custody of DORIS, and thereby to the public. We believe that the most assured route to achieving this goal will be for the legislation to trigger a series of automatic actions. We fear that dependence on the replevin clause of the City Charter will allow for the possibility of inaction by the government and lead to a stalemate with regard to those records. We encourage the Council to explore all possible avenues that will result in the return of these invaluable records to public custody.

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