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November 17, 1999

FOIL-AO-11814

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

I have received your letter of October 14, as well as the memorandum attached to it.
The issue involve the extent to which the County is required to generate information stored
electronically under the Freedom of Information Law. You wrote that the memorandum
"points out that where a program doesn't exist to run against existing raw data, a program
must be produced by an operator and loaded to access the data in the requested form." It is
your view that those steps may represent the "creation of a new document..."

In this regard, as you are aware, the Freedom of Information Law pertains to existing
records. Section 89(3) of that statute provides in part that an agency is not required to create
a record in response to a request. I point out, however, that §86(4) of the Freedom of
Information Law 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."

Based upon 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 some fifteen 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. 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 does not now exist or cannot be retrieved or extracted without
new programming or 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 an
applicant's interest. Those steps, in my view, would exceed an agency's responsibilities
under the Freedom of Information Law, and in those instances, if an agency wants to
accommodate an applicant, it has been advised that an agency is not limited to the fees that
would ordinarily be applicable under that statute. Stated differently, if the County chooses to
develop new programs in a manner that exceeds its duties imposed by the Freedom of
Information Law, I believe that it may contract with the applicant and determine a mutually
agreeable fee for services.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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