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July 30, 1998

Ms. Kathleen M. Curry
American Wilderness Resources, Inc.
138 Quaker road
Queensbury, NY 12804

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 Ms. Curry:

I have received your letter of July 20 and the materials attached to it.

As I understand the matter, St. Lawrence County offered for sale the 1998 tentative
assessment rolls relating to towns and villages within the County by seeking bids. A contract
was apparently awarded, and you were informed that "noone [sic] had access to this computer
print-out, although they stated that [you] or a person from [your] company could come in and
get the information manually from the assessment books." You have contended that the
County's action is "illegal and discriminatory under the Freedom of Information Act." You
have sought my views on the matter.

First, from my perspective, insofar as a contract is inconsistent with or diminishes
public rights of access conferred by a statute, such as the Freedom of Information Law, it
would be unenforceable. Stated differently, if records are available under the Freedom of
Information Law or any other statute, the terms of a contract could not in my opinion reduce
or abridge those rights.

Although the County has not contended that the assessment rolls are confidential, by
means of the contract, it has limited the means by which the public can acquire them. Based
on judicial decisions, I do not believe that such a limitation could be justified. For instance,
it has been held that a promise or assertion of confidentiality cannot be upheld, unless a
statute specifically confers confidentiality. In Gannett News Service v. Office of Alcoholism
and Substance Abuse Services [415 NYS 2d 780 (1979)], a state agency guaranteed
confidentiality to school districts participating in a statistical survey concerning drug abuse.
The court determined that the promise of confidentiality could not be sustained, and that the
records were available, for none of the grounds for denial appearing in the Freedom of
Information Law could justifiably be asserted. In a decision rendered by the Court of
Appeals, the State's highest court, it was held that a state agency's:

"long-standing promise of confidentiality to the intervenors is
irrelevant to whether the requested documents fit within the
Legislature's definition of 'record' under FOIL. The definition
does not exclude or make any reference to information labeled
as 'confidential' by the agency; confidentiality is relevant only
when determining whether the record or a portion of it is
exempt..." [Washington Post v. Insurance Department, 61 NY
2d 557, 565 (1984)].

In the context of your inquiry, while the records are not being withheld, the County is
apparently restricting public access by permitting only inspection of the records, and it is
prohibiting public access to computer generated copies to all but the firm submitting the
winning bid.

Second, in a somewhat related vein, as a general matter, when records are accessible
under the Freedom of Information Law, it has been held that they should be made equally
available to any person, regardless of one's status, interest or the intended use of the records
[see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)].
Moreover, the Court of Appeals, has held that:

"FOIL does not require that the party requesting records make
any showing of need, good faith or legitimate purpose; while
its purpose may be to shed light on government decision-making, its ambit is not confined to records actually used in
the decision-making process. (Matter of Westchester
Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full
disclosure by public agencies is, under FOIL, a public right
and in the public interest, irrespective of the status or need of
the person making the request" [Farbman v. New York City
Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

In short, assuming that the assessment rolls are available to the public, and I believe that to
be so, an agency cannot in my view discriminate among applicants for copies of those records.

Third, the Freedom of Information Law pertains to all 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 soon after the enactment 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 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.

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).

Lastly, I believe that the County is required to make the records available to you in
the format of your choice if it has the capacity to do so, so long as you pay the actual cost of
reproduction. With regard to such fees, I point out by way of background that §87(1)(b)(iii)
of the Freedom of Information Law stated until October 15, 1982, that an agency could
charge up to twenty-five cents per photocopy or the actual cost of reproduction unless a
different fee was prescribed by "law". Chapter 73 of the Laws of 1982 replaced the word
"law" with the term "statute". As described in the Committee's fourth annual report to the
Governor and the Legislature of the Freedom of Information Law, which was submitted in
December of 1981 and which recommended the amendment that is now law:

"The problem is that the term 'law' may include regulations,
local laws, or ordinances, for example. As such, state
agencies by means of regulation or municipalities by means of
local law may and in some instances have established fees in
excess of twenty-five cents per photocopy, thereby resulting
in constructive denials of access. To remove this problem, the
word 'law' should be replaced by 'statute', thereby enabling an
agency to charge more than twenty-five cents only in
situations in which an act of the State Legislature, a statute, so
specifies."

Therefore, prior to October 15, 1982, a local law, an ordinance, or a regulation for instance,
establishing a search fee or a fee in excess of twenty-five cents per photocopy or higher than
the actual cost of reproduction was valid. However, under the amendment, only an act of the
State Legislature, a statute, would permit the assessment of a fee higher than twenty-five
cents per photocopy, a fee that exceeds the actual cost of reproducing records that cannot be
photocopied, (i.e., electronic information), or any other fee, such as a fee for search or
overhead costs. In addition, it has been confirmed judicially that fees inconsistent with the
Freedom of Information Law may be validly charged only when the authority to do so is
conferred by a statute [see Gandin, Schotsky & Rappaport v. Suffolk County, 640 NYS 2d
214, 226 AD 2d 339 (1996); Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)].

Further, the specific language of the Freedom of Information Law and the regulations
promulgated by the Committee on Open Government indicate that, absent statutory authority,
an agency may charge fees only for the reproduction of records. Section 87(1)(b) of the
Freedom of Information Law states:

"Each agency shall promulgate rules and regulations in
conformance with this article...and pursuant to such general
rules and regulations as may be promulgated by the committee
on open government in conformity with the provisions of this
article, pertaining to the availability of records and procedures
to be followed, including, but not limited to...

(iii) the fees for copies of records which shall
not exceed twenty-five cents per photocopy
not in excess of nine by fourteen inches, or the
actual cost of reproducing any other record,
except when a different fee is otherwise
prescribed by statute."

The regulations promulgated by the Committee state in relevant part that:

"Except when a different fee is otherwise prescribed by
statute:

(a) There shall be no fee charged for the following:
(1) inspection of records;
(2) search for records; or
(3) any certification pursuant to this Part" (21
NYCRR 1401.8)."

Based upon the foregoing, it is likely that a fee for reproducing electronic information
would involve the cost of computer time, plus the cost of an information storage medium (i.e.,
a computer tape or disk) to which data is transferred.

Although compliance with the Freedom of Information Law involves the use of public
employees' time and perhaps other costs, the Court of Appeals has found that the Law is not
intended to be given effect "on a cost-accounting basis", but rather that "Meeting the public's
legitimate right of access to information concerning government is fulfillment of a
governmental obligation, not the gift of, or waste of, public funds" [Doolan v. BOCES, 48
NY 2d 341, 347 (1979)].

In an effort to enhance compliance with and understanding of the Freedom of
Information Law, copies of this opinion will be forwarded to County officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Director, Department of Governmental Services
William F. Maginn, Jr., County Attorney