PART 188, STATE GOVERNMENT ARCHIVES AND RECORDS MANAGEMENT

(effective February 5, 2009)

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 will work in partnership with state agencies, and where applicable with the 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:

1. Agency means any department, division, board, bureau, office, council, commission, authority, public benefit corporation having statewide responsibility, or a separate unit of the executive branch of state government created or established by law or executive order, but shall not include the Executive Chamber.

2. Archives facility means a facility administered by the director for the preservation and controlled use of archival records transferred from agencies and the judiciary, or a facility that is approved by the director as having an equivalent capacity to ensure the physical security and control of archival records.

3. 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.

4. Commissioner means the commissioner of education.

5. Director means the Assistant Commissioner of Education who is director of the State Archives.

6. Disposition means the authorized action to dispose of the records of an agency or the judiciary by destruction, transfer to another agency or branch of government, or transfer to an archives facility.

7. Record series means a group of related records that result from the same activity and can be evaluated together for disposition and other management purposes. Usually, the records in a record series are arranged under a single filing system or are otherwise kept together as a unit.

8. Records 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. Active records means records that are frequently referenced or otherwise frequently used for conducting current business.

   2. Archival records means records that are designated by the 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. Electronic records means those records which are stored in a form that can be read or processed only by means of a computer.

   4. Inactive records means records that are infrequently referenced or otherwise infrequently used for conducting current business.

   5. Vital records means selected records which, in the event of a disaster, are essential to the resumption or continuation of government operations, to the re-creation of the legal and financial status of State government, or to the protection of and fulfillment of obligations to the citizens of the State. Such term is not used as a synonym for official birth, death, and marriage records.

9. Records center facility means a facility maintained by the 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.

10. Records management means the planning, organizing, directing, controlling and other activities needed for effective records creation, records maintenance and use, and records disposition.

11. Records retention and disposition schedule means a document that prescribes the legally required minimum retention periods for records and the final disposition of records and may also describe where and in what form records must be kept.

12. Retention period means a period of time, expressed in terms of an event which must occur and/or the time which must elapse, before records may be disposed.

188.3 Responsibility of the State Archives.

1. The director shall administer the State Archives and State records center programs and facilities, shall provide records management training and technical assistance services to agencies, and shall approve the preservation and disposition of records, on behalf of the commissioner, according to procedures set forth in this Part.

2. 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 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.

3. As part of this review, and with the understanding that 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.

1. 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 the State Archives. The purpose of the agency records management program shall include but need not be limited to the following:

   1. promulgating records retention and disposition policies and ensuring compliance by all agency staff;

   2. ensuring that agency records are maintained and disposed in compliance with applicable sections of this Part;

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

   4. establishing a process to prepare and annually review and update an agency records management plan, which contains objectives and target dates to achieve compliance with the applicable provision of this Part, including plans to complete or maintain inventories and records retention and disposition schedules and, as needed, to guide agency program offices in the application of sound records management practices;

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

2. On or before January l, 1993, and thereafter when a change occurs, the head or governing body of each agency shall notify the director of the name and title of the person designated as the agency's records management officer.

188.5 Duties and responsibilities of agency records management officers.

1. The agency records management officer shall plan, promote and monitor the agency records management program in consultation with agency program managers and 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 the State Archives to the extent necessary to fulfill the applicable requirements of this Part;

   2. compile and maintain a current inventory of agency records;

   3. prepare and submit to the State Archives proposed records retention and disposition schedules, or other plans which delineate proposed records retention and disposition practices;

   4. oversee the continuing disposition of records in accordance with approved records retention and disposition schedules or other plans which delineate records retention and disposition practices;

   5. contribute to the development of and review of plans and programs to improve the management of agency records.

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

1. No agency shall destroy, transfer custody of, destroy the means to access, or otherwise dispose of any records without first having secured authorization to do so in accordance with the applicable provisions of this Part.

2. Records disposition authorizations that were issued pursuant to the provisions of former Section 186 of the State Finance Law, and that remained in effect when such law was repealed, continue in full force and effect unless modified or abrogated under applicable provisions of this Part.

3. The State Archives shall issue written guidelines to assist agency staff to distinguish between records and documentary materials that are not records.

4. Each agency shall develop and carry out plans to compile and maintain an up-to-date inventory of all records in its custody. An inventory shall contain information sufficient to prepare and implement records retention and disposition schedules. At minimum, an inventory shall include the title, purpose, responsible program area, contents, arrangement, volume, dates and locations of all records series, and the hardware and software requirements for all electronic records.

5. Each agency shall develop and carry out plans to obtain authorization from 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.

6. Each records disposition proposal must be reviewed by the agency records management officer for completeness and accuracy and be signed by the agency records management officer, whose signature shall constitute the agency's certification that the records listed in the proposal do not have sufficient administrative, legal, fiscal or other value to the agency to warrant their continued retention beyond the expiration of the proposed retention periods.

188.7 Review of agency proposals for records disposition authorization.

1. In reviewing agency records disposition proposals, the State Archives shall consider the submitting agency's statutory functions and responsibility. To be approved, the proposal shall demonstrate:

   1. that records are kept for a length of time sufficient to meet administrative, legal and fiscal requirements; and

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

2. 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.

3. At least 40 days prior to authorizing an agency records disposition proposal, 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 director if either the Attorney General or the State Comptroller, within 30 days after receiving a request, shall advise the State Archives that such records should not be destroyed according to the proposed schedule or plan.

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

1. 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.

2. The agency records management officer shall be informed in writing and shall be entitled to meet with 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.

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

2. A records disposition authorization, once issued, may be cancelled, suspended, and reinstated by the director and may be amended by the director to lengthen a minimum retention period which must elapse before the records may be destroyed.

3. The Attorney General, the Comptroller, or the agency to which a records disposition authorization pertains may cancel or may suspend and later reinstate any authorization upon notification to the director.

188.10 Records schedules issued by the State Archives. 

1. General records retention and disposition schedules may be issued by the State Archives to authorize the retention and disposition of records common to some or all agencies.

2. At least 40 days prior to issuance, 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 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 the State Archives.

3. Each agency records management officer shall inform the director in writing of the agency's intent to adopt and use a general records schedule. Adoption of a general records schedule eliminates the need for an agency to comply with the provisions of section 188.6 of this Part for those records included on the general records schedule. In the event of duplication of any record series between a general records retention and disposition schedule and an approved agency retention and disposition schedule, the provisions of the agency schedule shall prevail for that agency.

188.11 Disposition of records by an agency. 

1. No records shall be destroyed prior to the expiration of the retention period specified in the applicable records retention and disposition schedules or other plans authorized by the director.

2. 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 the State Archives or an equivalent disposal program administered by the agency. The State Archives program will include provisions for the contractor to shred confidential records prior to recycling.

3. Archival records in accordance with authorized retention and disposition schedules or other authorized plans shall be promptly transferred to an archives facility.

188.12 Emergency destruction of records.

1. Whenever an agency has in its custody any records that are considered by the 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 records management officer of such agency may request from the director authorization to destroy or dispose of such records immediately, indicating the conditions which make such immediate destruction or disposal necessary.

2. The 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.

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

1. 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:

   1. notify the director, as soon as practicable, as to the nature, type, and quantity of the records damaged or destroyed and the circumstances surrounding their damage or destruction;

   2. take immediate steps to protect the damaged records from further deterioration in accordance with technical advice furnished by the State Archives;

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

2. The director, upon notification of damage or destruction of records by fire or flood or as the result of any natural or manmade disaster, shall advise the Attorney General and the State Comptroller of such damage or destruction.

3. Within 60 days after the fire or flood or natural or manmade disaster causing damage or destruction to records, the agency records management officer shall furnish the director with information about the nature, type, and quantity of records no longer available for use; and the types of information contained in those records.

4. 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.

1. The 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.

2. The 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.

3. 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. 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. 

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

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

3. Records consigned to a records center facility must be identified and packaged according to procedures established by the director.

4. The director shall provide, upon request, technical advice in the identification and packing of records to be transferred to a records center facility. Such technical advice will not include furnishing personnel to pack the records.

188.16 Access to records stored in records center facilities. 

1. Access to records stored in and serviced at a records center facility will be permitted only as authorized in writing by the agency records management officer or the authorized representative of the unit of the judiciary transferring records to the facility. Such authorizations shall be in a manner and form prescribed by the director.

2. Each agency or unit of the judiciary, when transferring records to a records center facility, shall indicate in writing such restrictions on the retrieval of records as the agency or unit of the judiciary desires or requires the director to enforce. The director shall take all necessary and proper actions to enforce such restrictions.

3. 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 director. The State Archives will release records only to authorized representatives of the agency or the unit of the judiciary which transferred the records.

4. 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.

1. The director, at the request of the Division of the Budget, shall review proposals by agencies to establish or lease facilities or to contract for services to store inactive records, vital records, master copies of microforms, or backup copies of electronic records. The director will consider the availability of space in records center facilities and will evaluate the following elements of an agency proposal:

   1. the proposed inactive records storage location;

   2. the security and environmental conditions of the proposed storage location;

   3. the space to be occupied in gross square feet;

   4. the nature and quantity of records to be stored;

   5. total resources to operate the storage location, including personnel to be employed;

   6. justification for the proposed storage location.

2. The director shall recommend to the Division of the 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 original records on microfilm.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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

(Repealed)

188.20 Retention and preservation of electronic records.

1. An agency shall ensure that records retention requirements are incorporated into any plan and process for design, redesign, or substantial enhancement of an information system that stores electronic records.

2. An agency 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, an agency, in consultation with the State Archives, must determine that the records will remain usable and accessible by ensuring that the records are retained in currently available file formats and by creating adequate documentation of the records and their systems as defined in subdivision (c) of this section. If an agency cannot provide such protection to the records, it shall transfer the archival electronic records to the State Archives in a usable and accessible format.

3. An agency shall develop and maintain up-to-date documentation about all permanent or archival electronic records sufficient to:

   1. specify all technical characteristics necessary for reading and processing the records;

   2. identify all defined inputs and outputs from the system;

   3. define the contents of the files and records;

   4. determine restrictions on access and use;

   5. understand the purposes and functions of the system;

   6. describe update cycles and/or conditions and rules for adding information to the system, changing information in the system, or deleting information; and

   7. ensure the ongoing retention of records by the agency or the authorized transfer of records to an archives facility.

4. An agency shall prepare and store in a records center copies of archival electronic records in order to safeguard against loss.

5. For electronic media that contain permanent or archival electronic records, an agency shall institute maintenance procedures to:

   1. verify that the media are free of potentially damaging errors;

   2. rewind under constant tension all tapes at least every two years;

   3. annually test a three percent statistical sample of all units of media 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 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 to identify each media unit, the name of the organizational unit responsible for the records, and the records title.

188.21 Fees for records management services.

1. 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 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
      • 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
   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
      • Aging, Office for the
      • Agriculture and New York State Horse Breeding Development Fund
      • Arts, Council on the
      • Consumer Protection Board
      • Correction, Commission of
      • Crime Victims Board
      • Developmental Disabilities Planning Council
      • Domestic Violence, Office for the Prevention of
      • Emergency Management Office, State
      • Employee Relations, Office of
      • Energy Research and Development Authority
      • Environmental Facilities Corporation
      • Financial Control Board, New York State
      • 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 Prk Commission
      • Law Revision Commission
      • Municipal Bond Bank Agency
      • Northeastern Queens Nature and Historical Preserve Commission
      • Public Employment Relations Board
      • Quality of Care and Advocacy for Persons with Disabilities, Commission on
      • Regulatory Reform, Office of
      • 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' 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

2. 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 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.

3. Annual fixed fees, unless waived by the 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.

4. 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.

5. Revenue generated as the result of contracts administered by 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 the State Archives.

188.22 Operation of archives facilities.

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

2. The 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 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.

3. After records are transferred to an archival facility, the 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 the State Archives.

1. Agency records that have been determined to have sufficient value to warrant preservation shall be transferred to 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 director determines that protection and research use of the records is most effectively and efficiently accomplished by professional archival administration in an archives facility.

2. Prior to any scheduled transfer of records from an agency to the State Archives, the transferring agency shall notify 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.

3. For archival records stored temporarily in a records center facility, 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.

4. Archival records consigned to the State Archives must be identified and packaged according to procedures established by the director.

5. Records storage equipment received with transfers of records to the State Archives will be retained or disposed of by the State Archives unless the transferring agency requests their return.

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

1. 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 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 director also may consult with the New York State Local Government Records Advisory Council.

2. 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 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 Unified Court System.

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

1. 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.

2. Consistent with any policies established by the Governor or his or her designee, the 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 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.

3. Executive Chamber records may be transferred to the State records center facility, where access to such Executive Chamber records shall remain under the control of the Governor or former Governor who transferred the records, or a designee. There shall be no charge for storage in a records center facility of Executive Chamber records that are identified as archival and are scheduled for later transfer to the State Archives.

4. Executive Chamber records which are identified as archival should ultimately be transferred to the State Archives to be preserved and made available for research.

188.26 Public access to archival records from State agencies.

1. The director, or a designee, whose office is located in Room 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 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.

2. Archival records shall be available for inspection at the State Archives research room located on the 11th floor of the Cultural Education Center, Albany, NY 12230. Archival records shall be available during normal business hours for use by any individual subject to procedures needed to ensure the security and preservation of the records. Catalogs, inventories, lists, and other finding aids describing records in the State Archives are available to assist researchers.

3. Requests to inspect or to obtain copies of archival records may be made orally or in writing. The records access officer shall have the right to require that any request shall be in writing in a form prescribed by the records access officer.

4. 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 Officers Law (Freedom of Information Law).

5. The records access officer shall not restrict or deny access to any records more than 75 years old, except pursuant to statutory provisions which explicitly prohibit access to the records.

6. The 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 which explicitly prohibit access to the records. In establishing such access conditions, the director may enter into a memorandum of understanding with the agency that transferred the records to the State Archives to require the prior review of the agency before the records access officer makes a decision to permit access to the records.

7. With respect to records which are determined not to be available, the records access officer shall inform the person requesting the records in writing of such denial.

8. Appeals shall be directed to the commissioner within 30 days after denial from which such appeal is taken. Appeals shall be determined by the commissioner or an authorized representative.

9. Copies of records will be provided at a cost not to exceed that permitted in the Freedom of Information Law.

188.27 Protection and loan of archival records. 

1. Archival records shall not be removed from an archives facility unless removal is required for preservation treatment purposes or is otherwise authorized by the director pursuant to the provisions of this section.

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

3. In instances of demonstrated need and subject to terms and conditions set forth in an agreement between 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.

4. The 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.

5. The director may deny or restrict use of records in 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.

1. The archival records of the State University of New York (SUNY) 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.

2. The SUNY 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 director's approval of such standards.

3. The Chancellor of the State University of New York, or a designee, shall report biennially to the director on activities to administer archival records of the SUNY colleges and universities.

4. Funds made available to the State University of New York for records administration activities pursuant to the documentary heritage program administered by 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 biennial reports.

188.29 Board of Elections records.

1. 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 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 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 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.

2. When a board of elections plans to preserve a microfilm copy of records in lieu of preserving the original records, such board shall ensure that microfilm procedures and products meet the provisions specified in section 188.18 of this Part.