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July 5, 2000

FOIL-AO-12191

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, unless otherwise indicated.

Dear

I have received your letter of May 25, as well as a variety of related correspondence
concerning your efforts in obtaining records from Westchester County.

A copy of a response to your appeal rendered by the County Attorney indicates that
you requested:

"a compact disc containing in DATABASE FORMAT the
names, addresses and phone number of ANY AND ALL
Westchester County public park pass holders who are
Westchester County resident golfers utilizing Westchester
County Public Gold Courses; and

"a compact disc containing in DATABASE FORMAT the
names, addresses and phone numbers of ANY AND ALL
Westchester County resident golfers utilizing Westchester
County Public Golf Courses who are not Westchester County
public park pass holders."

The appeal was denied "on the ground that the Department does not have any records that it
can provide in compact disc format", nor does it "have any records of Westchester County
resident golfers who utilize Westchester County golf courses, but do not have Westchester
County public park passes." He added that the Freedom of Information Law does not require
that an agency create a record in order to respond to a request.

In this regard, I offer the following comments.

First, I am in general agreement with the County Attorney's statement that an agency
need not create a record in response to a request, for the Freedom of Information Law
pertains to existing records [see Freedom of Information Law, §89(3)]. Therefore, if, for
example, the County maintains no list County residents who use County public golf courses
but who do not have passes, the County would not be required to prepare such a list on your
behalf.

Second, as I understand the response, while there may be no list of all those County
residents who use County golf courses, it was inferred that there is documentation that
identifies those who are park pass holders, but that the County does not maintain and cannot
produce the documentation on a compact disc. If indeed the County does not have the ability
to transfer data onto compact discs, there would be no obligation to develop the capacity to
do so on your behalf. However, if the County has the ability to make the data available in a
different form or format, such as a printout, a tape or a floppy disc, I believe that it would be
required to do so to the extent that the data is accessible under the Freedom of Information
Law and you are willing to pay the actual cost of reproduction [see §87(1)(b)(iii)].

As you may be aware, the Freedom of Information Law pertains to agency records,
and §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.

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)].

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).

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. If the County cannot reproduce the data on a compact disc, it may nonetheless be
required to reproduce it in/on a different medium.

Further, 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, if the County has the ability to generate the data of
your interest, if it has the capacity to segregate that data from items that need not be
disclosed, 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 it would be obliged to do so.

I note that the regulations promulgated by the Committee on Open Government,
which have the force and effect of law, state that an agency's records access officer "is
responsible for assuring that agency personnel...Assist the requester in identifying requested
records, if necessary" [21 NYCRR §1401.2(b)(2)]. It is suggested, therefore, that you
contact the records access officer for the purpose of ascertaining the nature of the
information that the County maintains in which you have an interest, to learn of the manner
in which it is kept and can be reproduced or generated, and to submit a new request based on
the information that you acquire.

Third, assuming that there may be a record or records that contain items of interest,
any such records would be presumptively available under the Freedom of Information Law.
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.

It has consistently been advised that permits or licenses and similar, related kinds of
records are available to the public, even though they identify particular individuals. From
my perspective, various activities are the subject of permits or licenses due to some public
interest in ensuring that individuals or entities are qualified to engage in certain activities,
such as teaching, selling real estate, owning firearms, practicing law or medicine, or having
parking spaces in municipal parking lots or passes that enable residents to use municipal
facilities. I believe that those kinds of records are generally available, for they are intended
to enable the public to know that an individual has met appropriate requirements to be
engaged in an activity that is regulated by an agency or in which the agency has a significant
interest.

Names and addresses of licensees have been found to be available in Kwitny v.
McGuire [53 NY 2d 968 (1981)] involving pistol licenses, American Broadcasting
Companies v. Siebert [442 NYS 2d 855 (1981)] involving licensed check cashing businesses,
Herald Company v. NYS Division of the Lottery [Supreme Court, Albany County,
November 16, 1987] involving licensed lottery agents and in New York State Association of
Realtors, Inc. v. Paterson [Supreme Court, Albany County, July 15, 1981] involving licensed
real estate brokers and salespeople. In short, I believe that records identifiable to licensees or
park pass holders, for example, are generally accessible to the public.

The only provision of significance in analyzing rights of access in my view would be
§87(2)(b), which permits an agency to withhold records insofar as disclosure would
constitute "an unwarranted invasion of personal privacy." While I believe that names and
addresses of pass or permit holders would be available, I note that you also asked for their
telephone numbers. In my opinion, home telephone numbers may be withheld under the
provision cited above. As suggested earlier, if a database includes home phone numbers, if
the numbers are contained within a "field" and can be segregated from other items, an
agency would be obliged to make the items accessible under the law available after having
removed the home numbers. If the agency does not have a program that enables it to
separate home numbers from accessible items, a printout could be prepared or other records
duplicated from which phone numbers could be deleted to protect personal privacy.

Fourth, 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)].

Farbman pertained to a situation in which a person involved in litigation against an agency
requested records from that agency under the Freedom of Information Law. In brief, it was
found that one's status as a litigant had no effect upon that person's right as a member of the
public when using the Freedom of Information Law, irrespective of the intended use of the
records. Similarly, unless there is a basis for withholding records in accordance with the
grounds for denial appearing in §87(2), the use of the records, including the potential for
commercial use, is in my opinion irrelevant; when records are accessible, once they are
disclosed, the recipient may do with the records as he or she sees fit.

The only exception to the principles described above involves the protection of
personal privacy. Section 89(2)(b) of the Law provides a series of examples of unwarranted
invasions of personal privacy, one of which pertains to:

"sale or release of lists of names and addresses if such lists
would be used for commercial or fund-raising purposes"
[§89(2)(b)(iii)].

The provision quoted above represents what might be viewed as an internal conflict in the
law. As indicated earlier, the status of an applicant or the purposes for which a request is
made are irrelevant to rights of access, and an agency cannot inquire as to the intended use of
records. However, due to the language of §89(2)(b)(iii), rights of access to a list of names
and addresses, or equivalent records, may be contingent upon the purpose for which a request
is made [see Scott, Sardano & Pomeranz v. Records Access Officer of Syracuse, 65 NY 2d
294, 491 NYS 2d 289 (1985); Federation of New York State Rifle and Pistol Clubs, Inc. v.
New York City Police Dept., 73 NY 2d 92 (1989); Goodstein v. Shaw, 463 NYS 2d 162
(1983)].

In a case involving a list of names and addresses in which the agency inquired as to
the purpose for which the list was requested, it was found that an agency could make such an
inquiry. Specifically, in Golbert v. Suffolk County Department of Consumer Affairs
(Supreme Court, Suffolk County, September 5, 1980), the Court cited and apparently relied
upon an opinion rendered by this office in which it was advised that an agency may
appropriately require that an applicant for a list of names and addresses provide an indication
of the purpose for which a list is sought. In that decision, it was stated that:

"The Court agrees with petitioner's attorney that nowhere in the
record does it appear that petitioner intends to use the
information sought for commercial or fund-raising purposes.
However, the reason for that deficiency in the record is that all
efforts by respondents to receive petitioner's assurance that the
information sought would not be so used apparently were
unsuccessful. Without that assurance the respondents could
reasonably infer that petitioner did want to use the information
for commercial or fund-raising purposes."

Moreover, it was held that:

"[U]nder the circumstances, the Court finds that it was not
unreasonable for respondents to require petitioner to submit a
certification that the information sought would not be used for
commercial purposes. Petitioner has failed to establish that the
respondents denial or petitioner's request for information
constituted an abuse of discretion as a matter of law, and the
Court declines to substitute its judgement for that of the
respondents" (id.).

As such, there is precedent indicating that an agency may inquire with respect to the purpose
of a request when the request involves a list of names and addresses.

Based on the foregoing, it is suggested that a request for names and addresses include
a certification, if it is so, that you will not use the names and addresses for any commercial or
fund-raising purposes.

Lastly, in his determination of your appeal, the County Attorney suggested that "the
practice of the Executive Director in issuing opinions without being formally authorized to
do so in each specific instance by the full Committee on Open Government is in violation of
both FOIL and the Open Meetings Law." In this regard, enclosed are copies of a
memorandum prepared in October of 1978 in which the matter of delegation of authority to
enable me to carry out the day to day duties of the Committee was considered and minutes of
a meeting held soon thereafter in which the Committee authorized me "to do all that is
necessary to perform the duties of the Committee."

The County Attorney also wrote that the opinions that I prepare are "entitled to no
weight." While the opinions are not legally binding, the reality is that many find the
opinions to be educational and persuasive, and that the courts have in numerous instances
cited and relied upon the opinions as the basis for their decisions. Further, in a matter
unrelated to your request, the County Attorney, as required by law, sent a copy of his
determination to this office in which he cited and apparently relied upon opinions rendered
by this office. In so doing, his action suggests that our opinions, although not binding, may
indeed have some weight.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Alan D. Scheinkman, County Attorney
Neil Rentz