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January 22, 1998

 

E-mail
TO: KloeberEng<KloeberEng@aol.com>

Dear Mr. Kloeber:

I have received your e-mail message of January 21. For reasons unknown, your
communication of December 18 was not received by this office.

You referred to the status of electronic records maintained by a sewer district, a public
authority and a town. The records consist of CADD drawings and GIS databases.

In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to agency records, and º86(3) of that
statute defines the term "agency" to mean:

"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation, council,
office or other governmental entity performing a governmental or
proprietary function for the state or any one or more municipalities
thereof, except the judiciary or the state legislature."

Based on the foregoing, each of the kinds of entities to which you referred would
constitute "agencies" subject to the Freedom of Information Law.

Second, º86(4) of that statute 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."

In view of the language quoted above, if information is maintained in some physical form,
it would in my opinion 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 ten 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 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. Since º89(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)].

In Brownstone Publishers Inc. v. New York City Department of Buildings, the
question involved an agency's obligation to transfer electronic information from one
electronic storage medium to another when it had the technical capacity to do so and
when the applicant was willing to pay the actual cost of the transfer. As stated by the
Appellate Division, First Department:

"The files are maintained in a computer format that Brownstone can
employ directly into its system, which can be reproduced on computer
tapes at minimal cost in a few hours time-a cost Brownstone agreed
to assume (see, POL [section] 87[1] [b] [iii]). The DOB, apparently
intending to discourage this and similar requests, agreed to provide
the information only in hard copy, i.e., printed out on over a million
sheets of paper, at a cost of $10,000 for the paper alone, which would
take five or six weeks to complete. Brownstone would then have to
reconvert the data into computer-usable form at a cost of hundreds of
thousands of dollars.

"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)].

Additionally, in a more recent decision that 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). That
decision involved a request for a school district wide mailing list in the form of computer
generated mailing labels. Since the district had the ability to generate the labels, the court
ordered it to do so.

Third, as a general matter, the Freedom of Information Law is based upon a
presumption of access. Stated differently, all records of an agency are available, except to
the extent that records or portions thereof fall within one or more grounds for denial
appearing in º87(2)(a) through (i) of the Law.

Next, it is emphasized that the courts have consistently interpreted the Freedom of
Information Law in a manner that fosters maximum access. As stated by the Court of
Appeals, the State's highest court, nearly two decades ago:

"To be sure, the balance is presumptively struck in favor of disclosure,
but in eight specific, narrowly constructed instances where the
governmental agency convincingly demonstrates its need, disclosure
will not be ordered (Public Officers Law, section 87, subd 2). Thus,
the agency does not have carte blanche to withhold any information
it pleases. Rather, it is required to articulate particularized and
specific justification and, if necessary, submit the requested materials
to the courts for in camera inspection, to exempt its records from
disclosure (see Church of Scientology of N.Y. v. State of New York,
46 NY 2d 906, 908). Only where the material requested falls squarely
within the ambit of one of these statutory exemptions may disclosure
be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]."

In another decision rendered by the Court of Appeals, it was held that:

"Exemptions are to be narrowly construed to provide maximum
access, and the agency seeking to prevent disclosure carries the
burden of demonstrating that the requested material falls squarely
within a FOIL exemption by articulating a particularized and specific
justification for denying access" [Capital Newspapers v. Burns, 67 NY
2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62
NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571
(1979)].

Moreover, in the same decision, in a statement regarding the intent and utility of the
Freedom of Information Law, it was found that:

"The Freedom of Information Law expresses this State's strong
commitment to open government and public accountability and
imposes a broad standard of disclosure upon the State and its agencies
(see, Matter of Farbman & Sons v New York City Health and Hosps.
Corp., 62 NY 2d 75, 79). The statute, enacted in furtherance of the
public's vested and inherent 'right to know', affords all citizens the
means to obtain information concerning the day-to-day functioning of
State and local government thus providing the electorate with
sufficient information 'to make intelligent, informed choices with
respect to both the direction and scope of governmental activities' and
with an effective tool for exposing waste, negligence and abuse on the
part of government officers" (id., 565-566).

Lastly, if an agency's denial of access is challenged in a judicial proceeding, a court may
award attorney's fees, payable by an agency, in certain circumstances. Specifically,
º89(4)(c) of the Freedom of Information Law states that:

"The court in such a proceeding may assess, against such agency
involved, reasonable attorney's fees and other litigation costs
reasonably incurred by such person in any case under the provisions
of this section in which such person has substantially prevailed,
provided, that such attorney's fees and litigation costs may be
recovered only where the court finds that:

i. the record involved was, in fact, of clearly significant interest to the
general public: and

ii. the agency lacked a reasonable basis in law for withholding the
record."

There is nothing in the Freedom of Information Law that deals with the award of other
damages, such as punitive damages.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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