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March 6, 2001

FOIL-AO-12559

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 correspondence and apologize for the delay in response. You have
questioned the propriety of a request for a database maintained by the New York City Department
of Environmental Protection (DEP).

By way of background, the organization that you represent, the Watchperson Project, Inc.,
is a not-for-profit corporation created as part of a settlement between the DEP and the State
Department of Environmental Conservation requiring that certain violations of the Clean Water Act
be remedied. Part of the mission of your organization involves the development of a "clearinghouse
of environmental information", and it has acquired numerous databases than include information
reported by businesses and their use of hazardous and toxic materials. You wrote that:

"In order to effectively develop a comprehensive analysis of all of this
data, Watchperson has compiled all of this data in a Geographical
Information System (‘GIS'). It is for this reason that the Watchperson
requires its databases to be in some sort of digital format, an Excel
spreadsheet, a dBase database, an ascii comma-delimited file, or any
other format which can be saved to a floppy or zip disk and read into
a computer, upon which our GIS system resides."

Although you wrote that the New York City Administrative Code requires that the database of your
interest, the Citywide Facility Inventory Database (CFID), be maintained and made available by
DEP, that agency has, according to your letter, adopted "a policy of distributing information from
the CFID only when it receives a written request for information pertaining to a specific business."

In consideration of DEP's denial of your request for the database in "electronic format", you
have sought an opinion in response to the following questions:

"1. Can the DEP invoke the privacy exception for a public record
such as the CFID, which was created to inform the public about local
businesses using hazardous chemicals, given the fact that if individual
requests were made for individual companies, the names and
addresses of these businesses would be included in the information
printed out by the DEP?

2. From past conversations we have had with DEP employees, the
DEP contracted with a private software company to develop software
for the DEP to access the CFID from their computers. Evidently
through Watchperson is not interested in these codes, nor is it
interested in economically competing with this software company,
may the DEP invoke the trade secret and computer access code
exceptions?

3. Is there any reasonable argument that can be made for any of the
other statutory grounds for denial that the DEP has made, including
the use of the law enforcement, the contract awards exception, or
taking the position that commercial uses of FOILed information is
inappropriate?"

In this regard, I offer the following comments.

With respect to the first question, the "privacy exception", §87(2)(b) of the Freedom of
Information Law, is, in my view, inapplicable. Based on the language of the law and its judicial
interpretation, that provision is intended to pertain to natural persons, not entities or persons acting
in business capacities. In a decision rendered by the Court of Appeals that focuses upon the privacy
provisions, the court referred to the authority to withhold "certain personal information about private
citizens" [see Matter of Federation of New York State Rifle and Pistol Clubs, Inc. v. The New York
City Police Department, 73 NY 2d 92 (1989)]. In another decision, the opinion of this office was
cited and confirmed, and the court held that "the names and business addresses of individuals or
entities engaged in animal farming for profit do not constitute information of a private nature, and
this conclusion is not changed by the fact that a person's business address may also be the address
of his or her residence" [American Society for the Prevention of Cruelty to Animals v. New York
State Department of Agriculture and Markets, Supreme Court, Albany County, May 10, 1989).
Similarly, in a case concerning records pertaining to the performance of individual cardiac surgeons,
the court granted access and cited an opinion prepared by this office in which it was advised that the
information should be disclosed since it concerned professional activity licensed by the state
(Newsday Inc. v. New York State Department of Health, Supreme Court, Albany County, October
15, 1991).

In short, I do not believe that the provisions in the Freedom of Information Law pertaining
to the protection of personal privacy may be asserted to withhold records pertaining to entities other
than natural persons. On the contrary, since the records sought relate to commercial entities, I do
not believe that any of the grounds for denial would be applicable.

With regard to the second, based on the provision of the Administrative Code to which you
referred, §24-707, the DEP is obligated to "maintain and update, the citywide facility inventory
database, and shall, on an annual basis produce the data from such database in printed form." From
my perspective, if the DEP is required to print the entire content of its database, the equivalent
information must also be made available in electronic format.

As you may be aware, the Freedom of Information Law pertains to all agency records, and
§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. Again, based
on the terms of the Administrative Code, DEP is required to make the database "in printed form".
That being so, I believe that the same data must be made available in a format usable to you, if it has
the ability to do so, and if you are willing to pay the actual cost of reproduction [see Freedom of
Information Law, §87(1)(b)(iii)]. Further, in view of the clear obligation imposed by the City
Administrative Code to disclose the data in printed form, I do not believe that the DEP can evade
that requirement based on its contention regarding the disclosure of codes. I note, too, that it is my
understanding that the exception involving computer access codes in §87(2)(i) of the Freedom of
Information Law is intended to preclude disclosure of codes that would permit unauthorized access
to information stored electronically. That issue does not appear to be pertinent in the context of your
request.

Lastly, I do not believe that any of the grounds for denial would enable the DEP to withhold
the database. Its contents consist merely of a collection of facts. With respect to the possibility of
commercial use of the data, as a general matter, the reasons for which a request is made and an
applicant's potential use of records are irrelevant, and it has been held that if records are accessible,
they should be made equally available to any person, without regard to status or interest [see e.g.,
M. Farbman & Sons v. New York City, 62 NYS 2d 75 (1984) and Burke v. Yudelson, 368 NYS 2d
779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Therefore, if the records are available by law,
the intended use of the records would have no effect on your rights of access.

I am mindful that §89(2)(b)(iii) of the Freedom of Information Law permits an agency to
withhold "lists of names and addresses if such list would be used for commercial or fund-raising
purposes" on the ground that disclosure would constitute an unwarranted invasion of personal
privacy. However, as indicated earlier, the provisions pertaining to the protection of personal privacy
involve items relating to natural persons. In this instance, the data relates to business entities.
Consequently, the provision concerning the ability to withhold a list of names addresses on the
ground that the list would be used for a commercial purpose would not be applicable.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Records Access Officer