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February 23, 2000

FOIL-AO-11969

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 January 18, as well as the correspondence relating to it.
You have sought an advisory opinion concerning "police and fire call records" that have
been requested from the City of Utica. The records sought appear to be the equivalent of a
"police blotter" and had been made available routinely by the City. However, you were
informed that the information that had been disclosed was released "as a special courtesy
requiring extra work by the Utica Police Department", that it was created by a computerized
form that has since been discontinued", and that the "form you are accustomed to is no
longer in existence, neither [sic] through computerization or manually." You were also told
that the information sought must be "created", and that the City is not required to do so.

In this regard, as you are aware, the Freedom of Information Law pertains to existing
records. Section 89(3) of the Law states in part that an agency need not create a record in
response to a request. It is also important to note, however, that §86(4) of the Law defines
the term "record" 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 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
in the early days 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 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 be the equivalent of creating a new record. As stated earlier, since §89(3)
does not require an agency to create a record, an agency is not 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)].

Often information stored electronically can be extracted by means of a few
keystrokes on a keyboard. While some have contended that those kinds of minimal steps
involve programming or reprogramming, and, therefore, creating a new record, so narrow a
construction would tend to defeat the purposes of the Freedom of Information Law,
particularly as information is increasingly being stored electronically. If electronic
information can be extracted or generated with reasonable effort, if that effort involves less
time and cost to the agency than engaging in manual deletions, it would seem that an agency
should follow the more reasonable and less costly and labor intensive course of action.

While the City may have discontinued a computer application that had been used to
generate the information of your interest, I would conjecture that, in order to carry out its
duties effectively and guarantee the safety of its citizens, the City likely uses a different
application or information system. If, under that system, the City has the ability to generate
the data of your interest, I believe that it would be obliged to do so. It is suggested that you
seek records reflective of the file layout or layouts used in the City's current electronic
information systems.

Lastly, as suggested earlier, I believe that there is clearly a distinction between
extracting information and creating it. If an applicant knows that an agency's database
consists of 10 items or "fields", asks for items 1, 3 and 5, but the agency has never produced
that combination of data, would it be "creating" a new record? The answer is dependent on
the nature of the agency's existing computer programs; if the agency has the ability to
retrieve or extract those items by means of its existing programs, it would not be creating a
new record; it would merely be retrieving what it has the ability to retrieve in conjunction
with its electronic filing system. An apt analogy may be to a filing cabinet in which files are
stored alphabetically and an applicant seeks items "A", "L" and "X". Although the agency
may never have retrieved that combination of files in the past, it has the ability to do so,
because the request was made in a manner applicable to the agency's filing system.

In the context of your request, even though the electronic information system used to
generate the data of your interest in the past is no longer used, if the City has the ability to
generate equivalent data through a new or different system, for the reasons described above,
I believe that it is required to do so.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Charles N. Brown
Benny D. Rotundo