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  March 6, 2000

FOIL-AO-11978

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 February 10 in which you sought an advisory opinion
concerning a request for records of the Department of Motor Vehicles. You wrote that you
are attempting to obtain "a list of school bus drivers in the Capital Region, their names, ages
and driving records as they relate to moving violations and accidents" and that you are
focusing on drivers "who work with school bus companies licensed by the Department" and
operating in Albany, Schenectady, Saratoga and Rensselaer Counties. You added that you
would prefer to obtain the data "on an Excel spreadsheet or computer disc", but that the
Department indicated that it could not release the data due to the federal Driver's Privacy
Protection Act.

In this regard, I offer the following comments.

First, as a general matter, the Freedom of Information Law is based upon a
presumption of access. Stated differently, all records of an agency are available, except to
the extent that records or portions thereof fall within one or more grounds for denial
appearing in §87(2)(a) through (i) of the Law.

Second, with respect to the Department's claim, pertinent is §87(2)(a), which relates
to records that "are specifically exempted from disclosure by state or federal statute." In
many instances, the Driver's Privacy Protection Act, 18 USC §2721 et seq. prohibits the
disclosure of personal information maintained by the Department that is derived from license
records. However, in the context of your request, I do not believe that it would apply. For
purposes of that Act, §2725(3) defines the phrase "personal information" to mean:

"Information that identifies an individual, including an
individual's photograph, social security number, driver
identification number, name, address (but not the 5-digit zip
code), telephone number, and medical or disability
information, but does not include information on vehicular
accidents, driving violations, and driver's status" (emphasis
mine).

Since your request involves data relating to "moving violations and accidents", again, I do
not believe that the Driver's Privacy Protection Act would exempt the data from disclosure.

Third, while I know of no case law on the subject, it has been advised that portions of
records identifiable to individuals that include their ages may be withheld on the ground that
disclosure would constitute "an unwarranted invasion of personal privacy" pursuant to
§§87(2)(b), 89(2)(b), and 89(2-a) of the Freedom of Information Law. If, however, one's
age appears on an accident report, which is available from the Department under the
Freedom of Information Law and §66-a of the Public Officers Law, I believe that the same
item would be available from a different record maintained by the Department containing
equivalent information.

If indeed ages of bus drivers may properly be withheld, but ages are of primary
interest to you, names of the drivers could be withheld from the records prior to disclosure;
conversely, if you are interested more in the names than the ages, portions of the data
indicating age might be withheld prior to the disclosure of the remainder.

Lastly, as you may be 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.

In my view, 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, if the Department has the ability to generate the data of
your interest, subject to the qualifications discussed earlier regarding name and age, and if
you are willing to pay the actual cost of reproduction as envisioned by §87(1)(b)(iii) of the
Freedom of Information Law, I believe that the Department would be obliged to do so.

I hope that I have been of assistance. Should any further questions arise, please feel
free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director
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cc: Alexandra Sussman