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October 30, 2000

FOIL-AO-12366

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 in which you sought an opinion concerning the application
of the Freedom of Information Law relative to "a new agency endeavor which we refer to as
a data warehouse."

By way of background, you wrote that the Office of Real Property Services ("ORPS")
receives assessment data in electronic form from municipalities pursuant to §1590 of the Real
Property Tax Law. The data has long been accessible to the public and is made available by
municipalities and by ORPS on request. You wrote that:

"....staff proposes to copy this data into the data warehouse
where it can be accessed by a new online web application. The
application will allow the assessment community to access this
information over the internet. Access will be restricted to
assessors who will only be able to sign on if the agency has
provided a valid usercode and password. The application will
provide powerful features to run reports and select specific sets
of data anywhere in the sate. The original source of the data is
sill local governments, but we will be the primary owner of the
application."

You have asked whether I concur with your view that the application is "a delivery system"
and not a "record" subject to the Freedom of Information Law.

In this regard, I agree with your conclusion. As I understand its function, the
application is essentially a tool that enables assessors and others to use data; it is not data
itself and, therefore, in my opinion, it could not be characterized as a "record" as that term is
defined in §86(4) of the Freedom of Information Law. The application, like calculators or
computers that provide individuals with the means to create or use data, but which are not
themselves "records", would not in my opinion constitute a record for purposes of that
statute.

Further, although agencies are increasingly making data available to the public via the
Internet, I do not believe that there is any obligation to do so. That government officials,
acting in the performance of their official duties, may have the capacity to acquire the data on
the Internet through the use of usercodes and passwords does not in my view create a right of
access on the part of the public generally. As you suggested, so long as ORPS gives effect to
the Freedom of Information Law by making the data available on request in some sort of
storage medium, whether it be paper, or computer tape or disk, for example, I believe that it
would be acting in compliance with law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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