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 FOIL-AO-13575
August 21, 2002

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

With respect to your questions, first, the Freedom of Information Law pertains to agency
records, such as those of a county, and §86(4) of the Law defines the term "record" expansively to
include:

"any information kept, held, filed, produced, reproduced by, with or
for an agency or the state legislature, in any physical form
whatsoever including, but not limited to, reports, statements,
examinations, memoranda, opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings, maps, photos, letters,
microfilms, computer tapes or discs, rules, regulations or codes."

Based upon the language quoted above, if information is maintained in some physical form, it would
constitute a "record" subject to rights of access conferred by the Law. Further, the definition of
"record" includes specific reference to computer tapes and discs, and it was held more than twenty
years ago that "[i]nformation is increasingly being stored in computers and access to such data
should not be restricted merely because it is not in printed form" [Babigian v. Evans, 427 NYS 2d
688, 691 (1980); aff'd 97 AD 2d 992 (1983); see also, Szikszay v. Buelow, 436 NYS 2d 558 (1981)].

When information is maintained electronically, it has been advised that if the information
sought is available under the Freedom of Information Law and may be retrieved by means of
existing computer programs, an agency is required to disclose the information. In that kind of
situation, the agency would merely be retrieving data that it has the capacity to retrieve. Disclosure
may be accomplished either by printing out the data on paper or perhaps by duplicating the data on
another storage mechanism, such as a computer tape or disc. On the other hand, if information
sought can be generated only through the use of new programs, so doing would in my opinion
represent the equivalent of creating a new record.

Questions and issues have arisen in relation to information maintained electronically
concerning §89(3) of the Freedom of Information Law, which states in part that an agency is not
required to create or prepare a record in response to a request. In this regard, often information
stored electronically can be extracted by means of keystrokes or queries entered on a keyboard.
While some have contended that those kinds of minimal steps involve programming or
reprogramming, and, therefore, creating a new record, so narrow a construction would tend to defeat
the purposes of the Freedom of Information Law, particularly as information is increasingly being
stored electronically. If electronic information can be extracted or generated with reasonable effort,
if that effort involves less time and cost to the agency than engaging in manual deletions, I believe
that that an agency must follow the more reasonable and less costly and labor intensive course of
action.

Illustrative of that principle is a case in which an applicant sought a database in a particular
format, and even though the agency had the ability to generate the information in that format, it
refused to make the database available in the format requested and offered to make available a
printout. Transferring the data from one electronic storage medium to another involved relatively
little effort and cost; preparation of a printout, however, involved approximately a million pages and
a cost of ten thousand dollars for paper alone. In holding that the agency was required to make the
data available in the format requested and upon payment of the actual cost of reproduction, the Court
in Brownstone Publishers, Inc. v. New York City Department of Buildings unanimously held that:

"Public Officers Law [section] 87(2) provides that, 'Each agency
shall...make available for public inspection and copying all records...'
Section 86(4) includes in its definition of 'record', computer tapes or
discs. The policy underlying the FOIL is 'to insure maximum public
access to government records' (Matter of Scott, Sardano & Pomerantz
v. Records Access Officer, 65 N.Y.2d 294, 296-297, 491 N.Y.S.2d
289, 480 N.E.2d 1071). Under the circumstances presented herein,
it is clear that both the statute and its underlying policy require that
the DOB comply with Brownstone's reasonable request to have the
information, presently maintained in computer language, transferred
onto computer tapes" [166 Ad 2d, 294, 295 (1990)].

In another decision which cited Brownstone, it was held that: "[a]n agency which maintains in a
computer format information sought by a F.O.I.L. request may be compelled to comply with the
request to transfer information to computer disks or tape" (Samuel v. Mace, Supreme Court, Monroe
County, December 11, 1992).

Perhaps most pertinent is a decision rendered a year ago concerning a request for records,
data and reports maintained by the New York City Department of Health regarding "childhood
blood-level screening levels" (New York Public Interest Research Group v. Cohen and the New
York City Department of Health, Supreme Court, New York County, July 16, 2001; hereafter
"NYPIRG"). The agency maintained much of the information in its "LeadQuest" database. In that
case, the Court described the facts, in brief, as follows:

"...the request for information in electronic format was denied on the
following grounds:

'[S]uch records cannot be prepared in an electronic
format with individual identifying information
redacted, without the Department creating a unique
computer program, which the Department is not
required to prepare pursuant to Public Officer's Law
§89(3).'

"Instead, the agency agreed to print out the information at a cost of
twenty-five cents per page, and redact the relevant confidential
information by hand. Since the records consisted of approximately
50,000 pages, this would result in a charge to petitioner of $12,500."

It was conceded by an agency scientist that:

"...several months would be required to prepare a printed paper
record with hand redaction of confidential information, while it
would take only a few hours to program the computer to compile the
same data. He also confirmed that computer redaction is less prone
to error than manual redaction."

In consideration of the facts, the Court wrote that:

"The witnesses at the hearing established that DOH would only be
performing queries within LeadQuest, utilizing existing programs and
software. It is undisputed that providing the requested information
in electronic format would save time, money, labor and other
resources - maximizing the potential of the computer age.

"It makes little sense to implement computer systems that are faster
and have massive capacity for storage, yet limit access to and
dissemination of the material by emphasizing the physical format of
a record. FOIL declares that the public is entitled to maximum
access to public records [Fink v. Lefkowitz, 47 NY2d 567, 571
(1979)]. Denying petitioner's request based on such little
inconvenience to the agency would violate this policy."

Based on the foregoing, it was concluded that:

"To sustain respondents' positions would mean that any time the
computer is programmed to provide less than all the information
stored therein, a new record would have been prepared. Here all that
is involved is that DOH is being asked to provide less than all of the
available information. I find that in providing such limited
information DOH is providing data from records 'possessed or
maintained' by it. There is no reason to differentiate between data
redacted by a computer and data redacted manually insofar as
whether or not the redacted information is a record 'possessed or
maintained' by the agency.

"Moreover, rationality is lacking for a policy that denies a FOIL
request for data in electronic form when to redact the confidential
information would require only a few hours, whereas to perform the
redaction manually would take weeks or months (depending on the
number of employees engaged), and probably would not be as
accurate as computer generated redactions."

When requests involve similar considerations, in my opinion, responses to them based on
the precedent offered in NYPIRG must involve the disclosure of data stored electronically for which
there is no basis for a denial of access.

Second, with regard to fees for the reproduction of GIS data, §87(1)(b)(iii) of the Freedom
of Information Law stated until October 15, 1982, that an agency could charge up to twenty-five
cents per photocopy or the actual cost of reproduction unless a different fee was prescribed by "law".
Chapter 73 of the Laws of 1982 replaced the word "law" with the term "statute". As described in
the Committee's fourth annual report to the Governor and the Legislature of the Freedom of
Information Law, which was submitted in December of 1981 and which recommended the
amendment that is now law:

"The problem is that the term 'law' may include regulations, local
laws, or ordinances, for example. As such, state agencies by means
of regulation or municipalities by means of local law may and in
some instances have established fees in excess of twenty-five cents
per photocopy, thereby resulting in constructive denials of access. To
remove this problem, the word 'law' should be replaced by 'statute',
thereby enabling an agency to charge more than twenty-five cents
only in situations in which an act of the State Legislature, a statute,
so specifies."

Therefore, prior to October 15, 1982, a local law, an ordinance, or a regulation for instance,
establishing a search fee or a fee in excess of twenty-five cents per photocopy or higher than the
actual cost of reproduction was valid. However, under the amendment, only an act of the State
Legislature, a statute, would in my view permit the assessment of a fee higher than twenty-five cents
per photocopy, a fee that exceeds the actual cost of reproducing records that cannot be photocopied,
(i.e., electronic information), or any other fee, such as a fee for search or overhead costs. In
addition, it has been confirmed judicially that fees inconsistent with the Freedom of Information
Law may be validly charged only when the authority to do so is conferred by a statute [see Gandin,
Schotsky & Rappaport v. Suffolk County, 640 NYS 2d 214, 226 AD 2d 339 (1996); Sheehan v. City
of Syracuse, 521 NYS 2d 207 (1987)].

Further, the specific language of the Freedom of Information Law and the regulations
promulgated by the Committee on Open Government indicate that, absent statutory authority, an
agency may charge fees only for the reproduction of records. Section 87(1)(b) of the Freedom of
Information Law states:

"Each agency shall promulgate rules and regulations in conformance
with this article...and pursuant to such general rules and regulations
as may be promulgated by the committee on open government in
conformity with the provisions of this article, pertaining to the
availability of records and procedures to be followed, including, but
not limited to...

(iii) the fees for copies of records which shall not
exceed twenty-five cents per photocopy not in excess
of nine by fourteen inches, or the actual cost of
reproducing any other record, except when a different
fee is otherwise prescribed by statute."

The regulations promulgated by the Committee state in relevant part that:

"Except when a different fee is otherwise prescribed by statute:

(a) There shall be no fee charged for the following:
(1) inspection of records;
(2) search for records; or
(3) any certification pursuant to this Part" (21
NYCRR 1401.8)."

Based upon the foregoing, it is likely that a fee for reproducing electronic information would
involve the cost of computer time, plus the cost of an information storage medium (i.e., a computer
tape, a disk or cd) to which data is transferred.

Although compliance with the Freedom of Information Law involves the use of public
employees' time and perhaps other costs, the Court of Appeals has found that the Law is not
intended to be given effect "on a cost-accounting basis", but rather that "Meeting the public's
legitimate right of access to information concerning government is fulfillment of a governmental
obligation, not the gift of, or waste of, public funds" [Doolan v. BOCES, 48 NY 2d 341, 347
(1979)].

With respect to your remaining questions, when records are accessible under the Freedom
of Information Law, it has been held that they should be made equally available to any person,
regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368
NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals, the
State's highest court, has held that:

"FOIL does not require that the party requesting records make any
showing of need, good faith or legitimate purpose; while its purpose
may be to shed light on government decision-making, its ambit is not
confined to records actually used in the decision-making process.
(Matter of Westchester Rockland Newspapers v. Kimball, 50 NY 2d
575, 581.) Full disclosure by public agencies is, under FOIL, a
public right and in the public interest, irrespective of the status or
need of the person making the request" [Farbman v. New York City
Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

Farbman pertained to a situation in which a person involved in litigation against an agency requested
records from that agency under the Freedom of Information Law. In brief, it was found that one's
status as a litigant had no effect upon that person's right as a member of the public when using the
Freedom of Information Law, irrespective of the intended use of the records. Similarly, unless there
is a basis for withholding records in accordance with the grounds for denial appearing in §87(2), the
use of the records, including the potential for commercial use or the status of the applicant, is in my
opinion generally irrelevant.

In my view, an agency cannot condition disclosure on a requirement that an applicant sign
a document that saves the agency harmless in relation to the use of records by a member of the
public who has obtained the records under the Freedom of Information Law. Further, once an
applicant obtains a record, I believe that he or she may do with it as that person sees fit.

 

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Patricia Zugibe, County Attorney