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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public records and the preservation of invaluable historical documents.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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