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May 21, 1997

 

 

 

Mr. Josh Margolin
Staff Writer
The Times Herald Record
P.O. Box 2046
Middletown, NY 10940

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

Dear Mr. Margolin:

I have received your letter of April 24 in which you requested
assistance in your efforts in gaining access to records of the
Department of Motor Vehicles.

The correspondence that you forwarded indicates that on April
9 you sent a request to the Department, on behalf of the Times
Herald Record, in which you sought "a computerized listing of all
licensed passenger-car drivers residing in Orange, Sullivan and
Ulster counties." You asked that a cost estimate be made prior to
the fulfillment of the request and that you be given an opportunity
to consult with the Department's "technical people to determine
which computer program would best meet the needs of both [the]
agency and [y]our data systems." In a response dated April 17, you
were informed that "on the advice of Counsel, we [the Department]
will not be able to provide you a copy of these records as
requested. Our records are stored on a name and client information
basis." It was also stated that, "should you wish to provide a
specific name and or client ID number, we would be able to provide
your newspaper the requisite data."

From my perspective, the only issue is whether the Department
has the ability to generate the data that you requested based upon
its existing computer programs.

Your request is one among several in which the news media has
sought a variety of data from the Department of Motor Vehicles in
an electronic format. In my view, part of the difficulty involves
the language of §202 of the Vehicle and Traffic Law, the statute
that focuses on requests and the fees that may be charged for a
variety of records maintained by the Department. The provisions of
that statute do not, in my opinion, envision the kind of request
that you made, i.e., for a portion of a database.

Specific direction is offered in subdivision (2) of §202
concerning searches for records and the fees that may be assessed.
Paragraph (e) of that provision states in part that "a search shall
consist of a single entry of an acceptable identifier for the
purpose of obtaining specific categories of information relating to
a person, vehicle or number plate." Nothing in §202, however, with
the exception of reference to registration lists, pertains to a
request for a database or a portion of a database, as opposed to a
"search" based upon "an acceptable identifier." Similarly, nothing
in §202 or any other statute of which I am aware would prohibit an
applicant from seeking a database or a portion of a database
consisting of driver license information. That being so, I believe
that the provisions of the Freedom of Information Law, rather than
the Vehicle and Traffic Law, are determinative in the context of
your request. In short, if the Department has the capacity to
generate the data that you are seeking based upon its existing
programs, and if the Times Herald Record is willing to pay the
actual cost of reproduction in accordance with §87(1)(b)(iii) of
the Freedom of Information Law, I believe that the data must be
disclosed to you.

As you may be aware, the Freedom of Information Law pertains
to existing records. Section 89(3) of the Law states in part that
an agency need not create a record in response to a request. It is
also important to note, however, that §86(4) of the Law defines the
term "record" 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 in the early days of the Freedom of Information Law
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 disk. On the other hand, if information
sought can be retrieved from a computer or other storage medium
only by means of new programming or the alteration of existing
programs, those steps would be the equivalent of creating a new
record. As stated earlier, since §89(3) does not require an agency
to create a record, an agency is not required to reprogram or
develop new programs to retrieve information that would otherwise
be available [see Guerrier v. Hernandez-Cuebas, 165 AD 2d 218
(1991)].

If electronic information can be extracted or generated with
reasonable effort, I believe that an agency would be required to do
so based upon the thrust of judicial interpretations of the Freedom
of Information Law and the expressed intent of the Law indicating
that agencies are required to make records available "wherever and
whenever feasible" (see Freedom of Information Law, §84).

I note that §89(6) of the Freedom of Information Law provides
that when records are available under some other provision of law,
they remain available notwithstanding the remaining provisions of
the Freedom of Information Law. Pertinent in my view is §508(3) of
the Vehicle and Traffic Law, which states that the Commissioner of
the Department "shall keep a record of every license issued which
record shall be open to public inspection..." I believe that the
license record includes an individual's driving history for a
period of time, including convictions for violations of the Vehicle
and Traffic Law. If that is so, the information sought would be
analogous to data accessible from the Department in a different
form, and nothing in the Freedom of Information Law would serve as
a basis for a denial of access. Somewhat analogous is an early
case in which an applicant learned that real property assessment
records, which had been kept on paper, were maintained
electronically. In granting access, it was found that the
provisions of the Freedom of Information Law could not restrict
access to records available under another statute, and that the
format in which the records were kept, i.e., computer tapes, did
not alter public rights of access [Szikszay v. Buelow, 107 Misc. 2d
886, 436 NYS 2d 558 (1981)].

In an effort to resolve the matter and avoid litigation,
copies of this opinion will be forwarded to officials at the
Department of Motor Vehicles.
I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director
RJF:jm
cc: Raymond Hull
George Christian