January 20, 1998
Mr. Steven Ayers
Director of Business Operations
Hilton Central Schools
225 West Avenue
Hilton, NY 14468
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. Ayers:
I have received your letter of December 5, as well as the materials
attached to it. Please accept my apologies for the delay in response. You
have sought my views concerning the District's ability to deal with an
increasing number of requests made under the Freedom of Information Law.
In this regard, I offer the following comments.
First, having reviewed the correspondence, I would conjecture that
staff in some instances may have expended a substantial amount of time in
attempting to locate or retrieve requested records. If an attempt to locate
records involves the equivalent of searching for what may be a very few
needles in a large haystack, the law does not require that such a degree of
effort be expended.
If my assumption is accurate, perhaps the primary issue involves the
extent to which the requests "reasonably described" the records sought as
required by §89(3) of the Freedom of Information Law. I point out that it has
been held by the Court of Appeals that to deny a request on the ground that
it fails to reasonably describe the records, an agency must establish that "the
descriptions were insufficient for purposes of locating and identifying the
documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].
The Court in Konigsberg found that the agency could not reject the
request due to its breadth and also stated that:
"respondents have failed to supply any proof
whatsoever as to the nature - or even the
existence - of their indexing system: whether
the Department's files were indexed in a
manner that would enable the identification
and location of documents in their possession
(cf. National Cable Tel. Assn. v Federal
Communications Commn., 479 F2d 183, 192
[Bazelon, J.] [plausible claim of
nonidentifiability under Federal Freedom of
Information Act, 5 USC section 552 (a) (3),
may be presented where agency's indexing
system was such that 'the requested documents
could not be identified by retracing a path
already trodden. It would have required a
wholly new enterprise, potentially requiring a
search of every file in the possession of the
agency'])" (id. at 250).
In my view, whether a request reasonably describes the records sought, as
suggested by the Court of Appeals, may be dependent upon the terms of a
request, as well as the nature of an agency's filing or record-keeping system.
In Konigsberg, it appears that the agency was able to locate the records on the
basis of an inmate's name and identification number.
While I am unfamiliar with the District's recordkeeping systems, to the
extent that the records sought can be located with reasonable effort, I believe
that the requests would have met the requirement of reasonably describing the
records. On the other hand, if the records are not maintained in a manner that
permits their retrieval except by reviewing perhaps thousands of records
individually in an effort to locate those falling within the scope of a request,
to that extent, a request would not in my opinion meet the standard of
reasonably describing the records.
For example, in one request, the applicant sought "food bills and
receipts for teachers workshops and receptions within the district" for a period
of four years. If the records are filed under a particular heading or field, if
maintained electronically (i.e., "workshops", "receptions", etc.), it may be
relatively easy to locate and retrieve the records. However, if the bills and
receipts are maintained chronologically, not by subject matter, locating the
records could involve a review of thousands of items. In that latter situation,
the request would not, in my opinion, reasonably describe the records, even
though the request might have been specific. In short, in that kind of
situation, the District would not maintain the records in a manner that would
permit their retrieval without engaging in an effort exceeding that required by
the Freedom of Information Law.
Another request involved "receipts of all expenses to the district for
the CLASSIC project symposium." Again, if there is a file or computer entry
containing all receipts pertaining to that event, locating the records could
readily be accomplished. On the other hand, if the records are kept
differently, it may be difficult or even impossible to locate the records.
Expenses might have been incurred, for instance, for the purchase of supplies
at various times, perhaps without specific designation in relation to the
symposium; there may have been expenditures for security, custodial staff,
invitations, prizes, etc. Again, the means by which the records are kept and
filed would be relevant in determining whether or the extent to which the
request would have met the standard of reasonably describing the records.
Second, the title of the Freedom of Information Law may be
somewhat misleading, for it is not a vehicle that requires the disclosure of
information per se; rather, it is a vehicle that pertains to rights of access to
existing records. Similarly, while that statute may require an agency to
disclose records it does not require that an agency provide answers in
response to questions. In one request, the applicant wrote that she
"would...like to know if there are any clauses" in certain contracts dealing
"with severance pay at the time of leaving the district." Rather than reviewing
what may be a lengthy document, the applicant could be furnished with the
contract, and at that time, she could review it for the purpose of ascertaining
whether it includes the kind of clause to which she referred.
In a related vein, §89(3) of the Law states in part that an agency is not
required to create a record in response to a request, unless otherwise specified
in §87(3). In one of the requests, the applicant sought "a list of how the
money allocated to these codes have been spent." If no list exists or can be
generated, the District would not be obliged to create a list, a new record,
containing the information requested.
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 in
my view 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, in my
opinion, be the equivalent of creating a new record. As stated earlier, since
§89(3) does not require an agency to create a record, I do not believe that an
agency would be 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 information sought cannot be retrieved or extracted without
significant reprogramming, an agency would not, in my opinion, be obliged to
develop new programs or modify its existing programs in an effort to generate
the data of your interest. As you are aware, often information stored
electronically can be extracted by means of a few keystrokes on a keyboard.
While some have contended that those kinds of minimal steps involve
programming or reprogramming, I believe that so narrow a construction
would tend to defeat the purposes of the Freedom of Information Law,
particularly as information is increasingly being stored electronically.
I hope that I have been of assistance.
Robert J. Freeman