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February 19, 1999

Mr. Frank E. Redl
Town of Poughkeepsie
One Overocker Road
Poughkeepsie, NY 12603

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. Redl:

I have received your letter of February 4 in which you sought an advisory opinion.

You indicated that the Town of Poughkeepsie recently honored a request made under
the Freedom of Information Law for payroll information, which it made available on a
printout. However, the applicant, a newspaper, has asked that the information contained in
the printout be made available on computer disk. You have contended that "one cannot
request that the information be supplied to them in any specific form."

I respectfully disagree with your contention. In my view, the Freedom of Information
Law, in terms of its intent and its judicial interpretation, has and should be construed to
require agencies to produce accessible information in the format of the applicant's choice, so
long as the agency is able to do so and the applicant pays the requisite fee.

Illustrative of that principle is a case in which an applicant sought a database in a
particular format, and even though the agency had the ability to generate the information in
that format, it refused to make the database available in the format requested and offered to
make available a printout. In holding that the agency was required to make the data available
in the format requested and upon payment of the actual cost of reproduction, the Court in
Brownstone Publishers, Inc. v. New York City Department of Buildings unanimously held
that:

"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)].

Further, 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).

In short, assuming that the data sought is available under the Freedom of Information
Law, that it can be made available in the format in which an applicant requests it, and that the
applicant is willing to pay the requisite fee, I believe that an agency would be obliged to do
so.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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