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.