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June 24, 1998

Mr. George F. Supan
15 Fairview Road
Beacon, NY 12508

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. Supan:

I have received your letter of June 2. You have sought assistance in obtaining data from
the Wappingers Central School District in a usable electronic form.

In this regard, the Freedom of Information Law pertains to agency records, and §86(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.

If my understanding of the matter is accurate, it appears that the "Access database"
consists of software that enables the District to manipulate data. From my perspective, software
would itself constitute a record that falls within the framework of the Freedom of Information
Law, for it would be analogous to a written manual describing a series of procedures to be
followed to carry out a certain function. As such, I believe that it would constitute a record
falling within the coverage of the Law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Dr. Wayne F. Gersen
Joseph DiDonato