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September 1, 2000

FOIL-AO-12305

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 August 25. In your capacity as attorney for the Town of
Rhinebeck, you have sought an advisory opinion concerning a request made under the Freedom
of Information Law by Wallace S. Nolen. Mr. Nolen has sent the same request to numerous
entities of municipal government and state agencies.

The first element of Mr. Nolen's request involves "a complete listing containing the full
names, titles, salaries and public office address of each and every employee of your Town". The
second involves a "complete listing containing the voice and fax telephone numbers of every
employee of your Town", and in the third, he requested the e-mail address "of each employee in
which an email address is known and used by such person."

With respect to each aspect of the request, he asked that the records be e-mailed to him
or, in the alternative, faxed to him via his toll free fax number. Mr. Nolen suggested that sending
a record to him by e-mail or fax should not involve any fee, for he is not seeking paper records.
If a listing that he is requesting is not kept in a computer or other electronic format, citing Key v.
Hynes [205 AD2d 779 (1994)], he asked that he "be provided with a certificate in the form of an
affidavit by a person with knowledge attesting to such fact..." Further, since he contended that
no fee should be assessed if records are e-mailed or faxed to him, Mr. Nolen "advised that N.Y.S.
Penal Law section 200.35 and other statutes makes it a crime (class A misdemeanor) for a public
official to demand, solicit, and/or receive any fee greater than allowed by law." He also added
the following admonition in relation to the foregoing:

"Rest assured that if any attempt is made to delay this request for
payment of any fee and/or any solicitation of a fee, I will not
hesitate to file a formal criminal complaint as well as to take other
lawful steps to protect my rights."

In this regard, I offer the following comments.

First, with certain exceptions, the Freedom of Information Law is does not require an
agency to create records. Section 89(3) of the Law states in relevant part that:

"Nothing in this article [the Freedom of Information Law] shall be
construed to require any entity to prepare any record not in
possession or maintained by such entity except the records
specified in subdivision three of section eighty-seven..."

However, a payroll list of employees, the first record sought by Mr. Nolen, is included among the
records required to be kept pursuant to "subdivision three of section eighty-seven" of the Law.
Specifically, that provision states in relevant part that:

"Each agency shall maintain...

(b) a record setting forth the name, public office address, title and
salary of every officer or employee of the agency... "

As such, a payroll record that identifies all officers or employees by name, public office address,
title and salary must be prepared to comply with the Freedom of Information Law. Moreover, I
believe that a payroll list identifying employees, must be disclosed.

In analyzing rights of access, of primary relevance is §87(2)(b), of the Freedom of
Information Law, which permits an agency to withhold record or portions of records when
disclosure would result in "an unwarranted invasion of personal privacy." However, payroll
information has been found by the courts to be available [see e.g., Miller v. Village of Freeport,
379 NYS 2d 517, 51 AD 2d 765, (1976); Gannett Co. v. County of Monroe, 59 AD 2d 309
(1977), aff'd 45 NYS 2d 954 (1978)]. In addition, this Committee has advised and the courts
have upheld the notion that records that are relevant to the performance of the official duties of
public employees are generally available, for disclosure in such instances would result in a
permissible as opposed to an unwarranted invasion of personal privacy [Gannett, supra; Capital
Newspapers v. Burns, 109 AD 2d 292, aff'd 67 NY 2d 562 (1986) ; Steinmetz v. Board of
Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, October 30, 1980; Farrell v. Village
Board of Trustees, 372 NYS 2d 905 (1975) ; and Montes v. State, 406 NYS 664 (Court of
Claims 1978)]. As stated prior to the enactment of the Freedom of Information Law, payroll
records:

"...represent important fiscal as well as operational information.
The identity of the employees and their salaries are vital statistics
kept in the proper recordation of departmental functioning and are
the primary sources of protection against employment favortism.
They are subject therefore to inspection" Winston v. Mangan, 338
NYS 2d 654, 664 (1972)].

In short, a record identifying agency officers and employees by name, public office address, title
and salary must in my view be maintained and made available.

With respect to the "complete listing" of the voice and fax numbers of Town employees,
if there is no such listing, the Town, in my view, would not be required to create such a record on
behalf of an applicant. Insofar as such a listing exists, it is possible that some portions of the
record may be accessible, while others might properly be withheld.

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. From my perspective, two of the grounds for denial may be pertinent to an analysis
of rights of access. Section 87(2)(b), to which reference was made above, could not be cited, in
my opinion, to withhold employee office phone numbers in most instances, for the phone
numbers relate to the performance of a public employee's duties. In some circumstances,
however, certain telephone and particularly fax lines may be dedicated to certain uses. If those
lines were to become tied up by an outsider and could not be used as intended, an agency could
be precluded from carrying out its duties in a manner in which the public would be adequately
served or protected. For example, if a telephone or fax number is used by a municipality to
engage in law enforcement functions or emergency communications, and if the municipality
cannot transmit or receive information due to incoming faxed transmissions that tie up the line, I
believe that §87(2)(f) would likely serve as a basis for a denial of a request. That provision
authorizes an agency to withhold records when disclosure "would endanger the life or safety of
any person."

As you are aware, an agency has the burden of defending secrecy and demonstrating that
records that have been withheld clearly fall within the scope of one or more of the grounds for
denial [see §89(4)(b)]. However, in cases involving the assertion of §87(2)(f), the standard
developed by the courts is somewhat less stringent, for it has been found that:

"This provision of the statute permits nondisclosure of information
if it would pose a danger to the life or safety of any person. We
reject petitioner's assertion that respondents are required to prove
that a danger to a person's life or safety will occur if the
information is made public (see, Matter of Nalo v. Sullivan, 125
AD2d 311, 312, lv denied 69 NY2d 612). Rather, there need only
be a possibility that such information would endanger the lives or
safety of individuals...."[Stronza v. Hoke, 148 AD2d 900,901
(1989)].

It is noted that the principle enunciated in Stronza has appeared in several other decisions [see
Ruberti, Girvin & Ferlazzo v. NYS Division of the State Police, 641 NYS 2d 411, 218 AD2d
494 (1996), Connolly v. New York Guard, 572 NYS 2d 443, 175 AD 2d 372 (1991) and
McDermott v. Lippman, Supreme Court, New York County, NYLJ, January 4, 1994]. In sum,
insofar as there is a possibility that disclosure of phone or fax numbers could endanger life or
safety, based on judicial decisions, I believe that §87(2)(f) could properly be asserted.

If an agency has a central telephone number and calls are forwarded to employees
through the use of a switchboard or other transfer mechanism, it would appear that disclosure of
the central telephone number would be adequate to comply with the request.

A similar contention might be made with regard to the disclosure of e-mail addresses.
While I am not an expert in computer technology, it has become widely known due to events that
became international in their effects that e-mail and the use of an e-mail address can transmit
viruses that can cripple an electronic information or communication system or obliterate
information stored electronically. A virus attached to a single e-mail address can be transmitted
to every other e-mail address that has been contacted. That being so, again, it might be
contended that a wholesale disclosure of e-mail addresses, which in turn could result in an
inability to carry out critical governmental functions, could jeopardize the lives and safety of
members of the public, as well as government employees.

I note, too, that §87(2)(i) permits an agency to withhold "computer access codes". While
an e-mail address might not have been created to be used as a computer access code, it can be
used in to gain unauthorized access to a computer or to transmit a virus, for example, to one or
perhaps many more computers. Although there is no judicial decision of which I am aware that
deals with the situation raised, the cited provision might justifiably be asserted to withhold e-
mail addresses.

Second, in seeking the records by e-mail or fax and suggesting that no fee should be
charged because there is no reproduction of a paper record, Mr. Nolen, in my view, has
misconstrued the Freedom of Information Law and sought to extend agencies' obligations
beyond their statutory duties. From my perspective, there is a distinction in an agency's
responsibilities relative to the format in which records are made available and the means by
which they are transmitted.

As indicated earlier, the Freedom of Information Law pertains to existing records. It is
emphasized, however, that §86(4) 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 by or for an agency in some
physical form, it constitutes a "record" subject to rights of access conferred by the Freedom of
Information Law. The definition includes specific reference to computer tapes and discs, and it
was held soon after the reenactment of the statute 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 NYS2d 688, 691 (1980); aff'd 97 AD2d 992 (1983); see also,
Szikszay v. Buelow, 436 NYS2d 558 (1981)]. "Form" or "format" in my view involves the
medium by which information is stored; whether information is stored on paper or on a computer
tape or in a computer disk, it constitutes a "record."

In what may be the leading decision relating to an agency's obligations regarding
disclosure in an electronic medium, Brownstone Publishers Inc. v. New York City Department of
Buildings [166 AD2d 294 (1990)], the question involved an agency's duty to transfer electronic
information from one electronic storage medium to another when it had the technical capacity to
do so and when the applicant was willing to pay the actual cost of the transfer. As stated by the
Appellate Division:

"The files are maintained in a computer format that Brownstone
can employ directly into its system, which can be reproduced on
computer tapes at minimal cost in a few hours time-a cost
Brownstone agreed to assume (see, POL [section] 87[1] [b] [iii]).
The DOB, apparently intending to discourage this and similar
requests, agreed to provide the information only in hard copy, i.e.,
printed out on over a million sheets of paper, at a cost of $10,000
for the paper alone, which would take five or six weeks to
complete. Brownstone would then have to reconvert the data into
computer-usable form at a cost of hundreds of thousands of dollars.

"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"
(id. at 295).

In another decision, 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); aff'd 190 AD2d 1067 (4th Dept., 1993)].

In short, assuming that the conversion of format can be accomplished, that the data
sought is available under FOIL, and that the data can be transferred from the format in which it is
maintained to a format in which it is requested, an agency would be obliged to do so.

Mr. Nolen's request to have records e-mailed or faxed to him does not involve the format
in which the records are or may be kept. If the payroll record discussed at the outset can be made
available on a computer disk, and an applicant pays a fee based on the actual cost of reproduction
[see §87(1)(b)(iii)], I believe that an agency would be required to make the record available in
that kind of information storage medium. Mr. Nolen, however, is not asking that the records be
made available in a particular information storage medium; rather, he is asking that they be
transmitted to him in a certain way. In my view, there is nothing in the Freedom of Information
Law that requires that records be transmitted via fax or e-mail. An agency may choose to make
records available via those methods of transmission, but there is no obligation to do so. An
agency's responsibility under §§87(2) and 89(3) involves making records available for inspection
and copying, and to make copies of records available upon payment of the appropriate fee.

Third, I believe that Mr. Nolen's construction of Key v. Hynes, supra, is misplaced. As I
understand that decision, when an agency indicates that it cannot locate a record sought, an
applicant can request that a certification be prepared indicating that a diligent search was made
for the record. Key imposes a requirement that the certification must be made, in affidavit or
similar form, by the person who actually conducted the search.

Lastly, in the twenty-six years in which the Freedom of Information Law has been in
effect, I know of no situation in which a public officer has been charged with a crime in relation
to his or her duties associated with the implementation of that statute.

Should any questions arise in relation to the foregoing, please feel free to contact me. I
hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Wallace S. Nolen