|
New York State rulemaking requires the provision of public notice and and an opportunity for comment prior to the adoption of state regulations. See State Administrative Procedure Act (SAPA), article 2, which, like all New York laws, can be accessed on the web site of the New York State Assembly at: http://public.leginfo.state.ny.us/lawssrch.cgi?NVLWO:.
Rulemaking notices are published in the weekly edition of the New York State Register, which is available online, back to June 25, 2003, on the New York State Department of State's web site at: http://www.dos.ny.gov/info/register.htm.
The New York State Library has been scanning all editions of the New York State Register to its Digital Collection, which can be accessed at: http://128.121.13.244/awweb/main.jsp?smd=2&nid=16/17/145/19250.
Copies of the New York State Register are available in some public libraries and in most law libraries, including New York State's court law libraries, which are open to the public in each county. See the New York State Unified Court System's web site at: http://www.nycourts.gov/lawlibraries/publicaccess.shtml for a directory of court law libraries.
FOIL requests can be made to the New York State Department of State for copies of rulemaking notices or other materials that have appeared in prior issues of the New York State Register.
Besides the rulemaking notices themselves, each state agency maintains records on each rulemaking proceeding. These records, which are subject to FOIL, include:
• all studies, reports and/or analyses, and all other supporting data upon which the proposed regulatory amendments are based, and
• all the agency's assessment and response to such public comments.
A FOIL request need only "reasonably describe" the records being sought. See Public Officers Law § 89[3](a). The agency's Records Access Officer is charged "to assist persons in reasonably describing records." 21 NYCRR § 1401.2(b)(2). The agency must conduct a diligent search for reasonably described records. See Public Officers Law § 89[3](a); 21 NYCRR § 1401.2(b)(7)(ii).
Be as precise as possible in describing the requested records. The Official Compilation of Codes, Rules and Regulations of the State of New York as well as online subscription services like Westlaw and Lexis provide historical notes, which show the dates on which each section of a state regulation was added, amended or repealed. Include these dates, if known, in FOIL requests, which seek rulemaking notices or records of regulatory proceedings.
Example
You are seeking Emergency Assistance for Families (EAF) to meet immediate medical needs. You notice a contrast between Social Services Law § 350-j[3], which includes "items of medical services" within the scope of EAF, and 18 NYCRR § 372.4(a), which omits medical services. Your research reveals that this regulation used to authorize "such items of medical services as provided for in Part 360 of this Title." It appears that this regulatory provision was removed through a series of emergency measures, initiated on October 10, 1997, and permanently adopted as of February 17, 1999.
1. Your FOIL request to the New York State Department of State might seek:
All rulemaking notices, including but not limited to Notices of Proposed Rule Making, Notices of Emergency Adoption and Notices of Adoption, published in the New York State Register between October 1, 1997 and February 28, 1999 pertaining to 18 NYCRR § 372.4.
2. Your FOIL request to the New York State Office of Temporary and Disability Assistance might seek:
All records pertaining to the rulemaking proceedings between October 1, 1997 and February 28, 1999 to amend 18 NYCRR § 372.4(a), including but not limited to all rulemaking notices and all pre-proposal submissions and approvals for publication of such rulemaking notices, all comments received by your agency in response to the rulemaking notices, and all assessments and responses to such comments.
|
