Part 340 - PUBLIC ACCESS TO DEPARTMENT RECORDS UNDER FREEDOM OF INFORMATION LAW

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Statutory Authority: 
Social Services Law, Sections 20, 34

Section 340.1 - General.

Section 340.1 General. The department shall use the procedures in this Part in providing public access to information under the Freedom of Information Law (Public Officers Law, sections 84-90).

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Section 340.2 - Definitions.

340.2 Definitions. As used in this section:

(a) Business days means each regular business day of the State of New York, excluding weekends and legal holidays.

(b) Department records means all records produced, filed or first kept or promulgated after September 1, 1974.

(c) Subject-matter list means a reasonably detailed current list, by subject matter, of all department records whether or not available under the Freedom of Information Law.

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Section 340.3 - Records access officer.

340.3 Records access officer. The records access officer, who shall be the departmental public information officer, shall be responsible for providing access to department records in response to requests therefor by any member of the public, to the extent required by the Freedom of Information Law. In carrying out this responsibility, the records access officer shall:

(a) compile and maintain the subject-matter list;

(b) receive requests for identifiable records;

(c) determine whether a request sufficiently identifies a record; and, if not, so notify the person making the request and make reasonable efforts to assist him in identifying the records, if necessary;

(d) if the request is for a record or records contained in files maintained by him, determine whether the requested record is required by law to be made available; and, if so, comply with the request directly, upon payment of any fees required under this Part;

(e) if the request is for a record contained in files maintained by another division or office within the department, determine in consultation with officials of that division or office whether the requested record is required by law to be made available; and, if so, assure that the request is complied with, upon payment of or offer to pay any fees required under this Part;

(f) if the request is denied in whole or in part, provide the person making the request with written notification of that decision and the reasons therefor;

(g) certify, when a record cannot be located, that:

(1) the department is not the legal custodian for such records; or

(2) after diligent search, the record cannot be found;

(h) provide advice and consultation, on request, to records access officers of social services districts with respect to those districts' responsibilities for providing access to records under the Freedom of Information Law; and

(i) maintain a complete and accurate accounting of each request for department records, the persons to whom the request was referred, the responses to the request, and the amount of any fees collected in connection therewith.

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Section 340.4 - Time and place for inspection.

340.4 Time and place for inspection. Requests for public access to records shall be accepted and records made available for inspection and copying between the hours of 8:30 a.m. and 5 p.m., on business days, at 40 North Pearl Street, Albany, NY, or at such other place as is mutually agreeable.

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Section 340.5 - Subject-matter list.

340.5 Subject-matter list. (a) A subject-matter list shall be available for public inspection and copying. The list shall be sufficiently detailed to permit the requester to identify the fine category of the records sought.

(b) The subject-matter list shall be revised and updated not less than semi-annually and the date of the most recent revision shall appear on the first page.

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Section 340.6 - Requests for public access to records; procedure.

340.6 Requests for public access to records; procedure. (a) Manner of making requests.

(1) A request for access to department records may be made by mall, in person or by telephone.

(2) The person making a request for access to records shall, to the best of his ability, supply information regarding dates, titles, file designations, or other information which may help identify the records.

(b) Manner of responding to records. (1) Except under extraordinary circumstances, the records access officer shall transmit a response to a request for records within five business days after his receipt of the request, regardless of the manner in which the request was made. If, because of extraordinary circumstances, more than five business days are required to transmit a response to a request, acknowledgment of receipt of the request shall be transmitted within five business days after the request is received. The acknowledgment shall state the reason for delay and estimate the date when a reply will be made.

(2) A response shall state that the request for access or copies is granted or denied, or that the department is not the legal custodian of the record requested or that the record cannot be found. The response shall be in writing in all cases except where an oral request is granted.

(3) In complying with requests for copies of those records required by law to be made available, the records access officer shall make available upon payment of or offer to pay any fees required under this Part, one copy of the record requested, and, if the person making the request demonstrates good cause for needing additional copies and has no means of reproducing the record, a reasonable number of additional copies. Upon request, the records access officer shall certify that a transcript of a record which cannot be readily

photocopied is a true copy of that record. A photocopy of a record shall be deemed to be a true copy thereof.

(4) Records shall be inspected in the presence of the records access officer, and shall not be removed from the office where they are kept without that officer's permission.

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Section 340.7 - Fees.

340.7 Fees. (a) There shall be a charge of 25 cents per photocopy page for all records which can be photocopied. However, the commissioner in his discretion may waive the collection of such a fee on any request for copies of 10 or less pages.

(b) For a record which cannot be readily photocopied, there shall be a charge equal to the amount of the actual cost of making a transcript thereof.

(c) There shall be no fee charged for inspection of records, search for records, or for any certification under this Part.

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Section 340.8 - Denial of access to records.

340.8 Denial of access to records. (a) Denial of access to records shall be in writing, stating the reason or reasons therefor and advising the person making the request of his right to appeal to the appeals officer, who shall be the departmental general counsel.

(b) Failure to provide records or to acknowledge receipt of a request therefor within the time specified in section 340.6(b) of this Part shall be deemed a denial of access for purposes of section 340.9 of this Part; provided, however, that if the request is acknowledged or the records are provided prior to the time an appeal is initiated, such a failure shall not be deemed a denial.

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Section 340.9 - Appeals.

340.9 Appeals. (a) Any person whose request for department records has been denied may appeal to the appeals officer designated by the State Commissioner of Social Services, who shall decide all appeals from denial of access to records in accordance with the provisions of the Freedom of Information Law.

(b) All appeals shall be in writing, addressed to the appeals officer, and mailed or submitted to him within 3O business days after the receipt of denial of access to the requested records, or within 40 business days after the request is made, if no response to the request has been received. Each such appeal shall contain at least the following information:

(1) the date or dates on which each such record was requested and the manner in which each was made;

(2) the record or records to which access was denied;

(3) whether the denial of access was:

(i) in writing, and if so, the date thereof; or

(ii) by failure to provide records, or to acknowledge receipt of a request therefor within the time specified in section 340.6(b) of this Part; and

(4) the date of the appeal and the name and address of the person making the appeal.

(c) Each appeal made in the manner and within the time specified in subdivision (b) of this section shall be decided by the appeals officer, who shall issue to the person making the appeal a written decision within ten business days of receipt of the appeal. The decision shall either

(1) authorize access to the requested record, or (2) deny access to the record and state the reasons for the denial, or (3) state that the department is not the legal custodian of the requested record, or that after diligent search the record cannot be found.

(d) The appeals officer shall immediately forward to the Committee on Open Government, a copy of each appeal and the determination thereon.

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Section 340.10 - Names, addresses and telephone numbers of department officials.

340.10 Names, addresses and telephone numbers of department officials. The names, business addresses, and telephone numbers of the records access officer, and the appeals officer shall be made available to any person requesting such information by telephone from the department's main office or in writing addressed to the Department of Social Services, 40 North Pearl Street, Albany, NY.

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Section 340.11 - Trade secrets received in conjunction with procurement and

340.11 Trade secrets received in conjunction with procurement and contract monitoring activities. (a) The records access officer of the department shall be responsible for the custody, inspection and study of records actually or potentially containing trade secrets submitted by actual and potential contractual agents of the department, to which access may be denied pursuant to paragraphs (c) and (d) of subdivision 2 of section 87 of the Public Officers Law and for monitoring inquiries relating to trade secrets.

(b) (1) Records believed to contain trade secrets shall be subject to general access only by employees or officials or others acting as agents of the department who need such records in connection with the evaluation of a contract bid proposal issued by the department or performed in conjunction with such contract bid proposal. Records likely to contain trade secrets may also be given to other departmental employees, upon the approval of the records access officer, to the degree necessary for such departmental employees to discharge their duties to the department.

(2) The department or official shall not use the information for any purpose other than evaluating a contract bid submitted to the department except as otherwise specified in the department's procurement of contractual documents or upon approval of the records access officer as set forth in paragraph (1) of this subdivision.

(3) Records containing trade secrets shall be stored in a place reasonably secure from access by unauthorized persons, given the department's operating needs.

(4) The department or official shall instruct all personnel who will have access to the records as to the confidential nature of the records and the requirements of sections 87 and 89 of the Public Officers Law.

(c) This section and subdivision five of section 89 of the Public Officers Law shall apply to submission of information to the department in connection with a contract bid. Notwithstanding the above, the department, as part of a proposal procedure, may require waiver by the vendor of the provisions of subdivision five of section 89 of the Public Officers Law and the publication of any information submitted by the vendor.

(d) Notwithstanding the above, the department shall have the right to disclose all material submitted by a party awarded a contract in a competitive procurement to the degree such material was reviewed as a material portion of the contractor's submission, upon approval by the State Comptroller of the contract governing the procurement.

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Section 340.12 - Severability.

340.12 Severability. If any provision of this Part or the application thereof to any person or circumstance is adjudged invalid by a court of competent jurisdiction, that judgment shall not affect or impair the validity of the other provisions of this Part or the application thereof to other persons and circumstances.

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