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July 18, 1997

 

 

 

Mr. Roger Clegg
General Counsel
Center for Equal Opportunity
815 Fifteenth Street, NW
Suite 928
Washington, DC 20005

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,
unless otherwise indicated.

Dear Mr. Clegg:

I have received your letter of July 2, as well as the
materials attached to it. In addition, I have obtained a variety
of correspondence from Assemblyman John Faso concerning your
efforts in gaining access to certain data from the SUNY system.

Having reviewed the materials, I offer the following comments.

First, the title of the Freedom of Information Law may be
somewhat misleading, for it is not a vehicle that requires agencies
to provide information per se; rather it is a statute that may
require agencies to disclose existing records. Similarly, as you
are aware, §89(3) of the Freedom of Information Law provides in
part that an agency is not required to create a record in response
to a request.

In several elements of your requests, you sought information
by asking questions, i.e., "[w]hat are the math and verbal scores"
achieved on the SATs by ethnic group; "[w]hat percentage of certain
ethnic groups" are admitted solely on the basis of standardized
test scores, etc. In short, an agency is not required to answer
questions. Again, an agency's obligation is to disclose existing
records.

Second, due to your familiarity with the Committee's views
expressed in its "Primer on Electronic Information, Fees, and
Responses to Requests", I believe that clarification may be in
order. It is clear that the Freedom of Information Law includes
electronic information maintained in the form of a record within
its scope. It is also clear that an agency is obliged to extract
and disclose available data when it has the ability to do so based
upon its existing computer programs. Based upon judicial
decisions, however, it is equally clear that an agency is not
required to develop new computer programs in order to generate data
that it cannot extract by means of its existing program [see
Guerrier v. Hernandez Cuebas, 165 AD 2d 218 (1991)].

The correspondence acquired from Assemblyman Faso indicates
that in some instances, the information in which you are interested
simply is not prepared. In others, it appears that the information
sought may be stored in some manner electronically by entities with
the SUNY system, but that those entities do not have the ability,
based upon their computer programs, to generate the data in the
combination of elements that you have requested. If that is so,
from my perspective, those entities would not be required to engage
in reprogramming or the development of new programs in an effort to
accommodate you.

In the copy of the "Primer" that you attached to your letter,
you highlighted a paragraph in which it was suggested that:

"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, it
would seem that an agency should follow the
more reasonable and less costly and labor
intensive court of action."

It appears that your interpretation of the preceding remarks may be
that it is the Committee's view that an agency is required to
engage in new programming if that effort involves less time or cost
than engaging in manual deletions from paper records that may be
printed out. As specified in the passage following the quoted
commentary, such a position has not been established by any court,
and it is not currently the opinion of the Committee. The
commentary merely is intended to suggest that it may be more
sensible, depending upon the circumstances, to engage in
reprogramming than the laborious task of manually deleting items
from paper records.

I believe that an applicant could ask for a printout from
which appropriate deletions could be made as a means of acquiring
data, preparing analyses, or otherwise and using it as he or she
sees fit. However, in that circumstance, since an agency would be
obliged to prepare a copy of a printout, i.e., a photocopy, I
believe that the applicant could be charged for the duplication of
those records. As you may be aware, §87(1)(b)(iii) of the Freedom
of Information Law authorizes an agency to charge up to twenty-five
cents per photocopy up to nine by fourteen inches.
I hope that the foregoing serves to clarify your understanding
of the matter and that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Martin T. Reid
Carolyn Pasley
William F. Messner