ࡱ> 9;8  bjbjT~T~ 406633334g 3hsssssjjj       Z jjjjj ss"j ss j 'sP :3t"80h,''jjjjjjj  jjjhjjjjjjjjjjjjj : Camille Jobin-Davis, Esq. Assistant Director New York State Committee on Open Government Session 3: Access to State, Local, and Tribal Government Records New York is somewhat unique in the world of access to government records. Although the fact that there has been a Freedom of Information Law on the books since the late 1970s is not unusual in the United States, the New York State Law created an office at the state level that provides counsel, training, education and written advisory opinions regarding access to state and local government records. The primary responsibilities of the Committee on Open Government are vested in the staff, and although the Law provides the public with the ability to bring legal action in court to compel an agency to disclose records, the Committee has authority to interpret the Law, and the services provided are free. Over the course of the past thirty-seven years, through the tireless efforts of its executive director, the Committees staff has earned a reputation of being loyal to the fundamental principles of the Law, working as advocates for access, and interpreting the statutes in a manner in which many courts have found to be reasonable. Accordingly, while I believe that it is imperative that access laws contain a cause of action that enables the public to bring suit in court against the government when it fails to comply, I also firmly believe that it is imperative for both the public and the government to have an advisory body to seek legal advice from in an efficient and cost effective manner. Without a resource such as this, all issues are determined in court, with very little momentum during times of great change. Without it, issues of how to apply the law to records that are maintained in heretofore unimagined formats are typically not addressed in a timely or reasonable manner. Without an advisory body to bring attention to and pressure on the situation, the public is left to fume at the expense of legal action and with the general impression of continual unresponsiveness of government at many levels. Second, it is my impression that each of the formats in which information is stored, whether email, a wave file, or a database that has been cobbled together over changes in administrations, objectives and technology, presents unique benefits in terms of access, and is not without unique challenges. In New York, all of the information stored in all of these formats at all levels of government constitute records, subject to disclosure under the Law. While our Law was enacted in the 70s, the definition of record was and is broad enough to include all data captured in electronic formats. Fundamentally, I believe that this is a crucial component to a workable access law; a statutory definition of record that is flexible enough to include data captured in all types of electronic media, as well as judicial support for its broad scope. Dovetailing with the issue of having legal access to data regardless of format is the issue of analyzing or manipulating that data and making it accessible in a searchable and usable manner. It is vital to a democracy that there be relentless leadership in the movement toward standardizing government data storage formats. I am aware that various industries have wrestled with issues of recording, capturing and disseminating product in electronic formats. The movie industry has been subject to the realities of a competitive world of manufacturers and vendors in the production of recorded material, for example. No one method for recording and distributing music seems to dominate for very long, and the evolution of television sets or home theaters is evidence of numerous methods and products available for viewing material in the home. It is safe to say that the technology for producing and distributing audio and visual recordings will continue to evolve. Similarly, I am sure that the evolution of the software and hardware used to collect, analyze and maintain data will continue to astound us for many years to come. This is why it is imperative that government entities always consider how information will be made accessible before choosing the software and hardware used to collect, create and house its data. My colleagues in the records retention business advocate for the use of standard formats that facilitate use and online access over time. This is wise advice. Here, I make an additional pitch, that government agencies be required to collect or create records in formats that make them accessible, searchable and capable of being put online in an orderly fashion. Like others, I believe that it is unreasonable to expect that government entities immediately convert all of their existing information into accessible formats; however, there are no longer reasons why such considerations should not be mandated from now on. Which leads me to repeat the refrain thats heard in my office and elsewhere these days -- of proactive disclosure. When local government officials call to discuss fees, including how much per page, whether they can charge for clerical time, if fees can be charged prior to disclosure or for the inspection of records after Ive set out the legal parameters, I try to ask whether (a) these records are of significant interest to the public (i.e., are others likely to find these records valuable or useful?) and (b) why not put the records online? Flooding our websites with records is not necessarily a good idea, but making public records that are of significant or enduring interest available online, for the period during which they are of interest, in an organized fashion, makes sense on many levels. Primarily, I believe that it saves administrative time and money at the local government level. Further, many an expensive legal battle would be averted if raw data required to be made public were available online in a searchable format, along with any corresponding analytical materials procured through state and federal agencies, as a matter of course. And finally, once public information is made public, it is likely that at some point it will be placed online in some format, so why shouldnt government make it accessible in a responsible, usable manner? 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