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July 2, 2001

FOIL-AO-12776

E-Mail

TO:

FROM: Robert J. Freeman, Executive Director

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

As you are aware, I received a communication from you in May concerning access to payroll
records of the Town of Laurens. Most recently, you indicated that you asked that the records be
copied onto a computer disk, but that Town's finance officer "claimed she did not know how to copy
and then delete the confidential information, i.e., SSN's, HMO's, etc., even though she has been
using this program for several years." Consequently, the Town Board contacted "an outside
computer specialist to extract and provide [you] with the information....for a fee in excess of
$200.00." You have questioned the propriety of the fee.

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.

I point out that, 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 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 the payroll record and other related records identifying employees and their salaries
must be disclosed.

Of relevance is §87(2)(b), 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 Gannett, supra, the Court of Appeals held that the identities of former
employees laid off due to budget cuts, as well as current employees, should be made available. 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 employees by name, public office address, title and salary must
in my view be maintained and made available. Items that have no relevance to the performance of
one's official duties, such as social security numbers, the deductions and the like may be withheld
on the ground that disclosure would constitute an unwarranted invasion of personal privacy.

Second, in my view, assuming that the items of your interest can be generated based on the
Town's existing computer programs and copied onto a disk, I believe that the Town must do so. In
that event, the fee would be based on the actual cost of reproduction. Following is an excerpt from
an article that I prepared that deals with the issues that you raised:

"[W]hen information is maintained electronically, if the
information sought is available under FOIL 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 suggested 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 AD2d 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, so narrow a construction would tend to defeat the
purposes of the FOIL. Morever, extracting information and
creating it clearly involve different functions.

"If, for example, 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. On the other hand, if the
applicant makes a second request, this time for items 7, 8 and 9,
but the agency has no method of retrieving or extracting those
items except by means of new programming, i.e., changing the
means by which it may retrieve or extract data, the act of
reprogramming would be the equivalent of creating a new record,
and an agency would not be required to do so. Going back to the
filing cabinet in which the records are maintained alphabetically,
the analogy would involve a request for the records filed, for
example, between April and July of 1997. The agency knows that
the items sought are kept within its files, but there may be no way
of locating them, except by reviewing each individually. In that
situation, the agency would not be required to alter its filing
system, i.e., change it from alphabetical to chronological order, in
an effort to accommodate the applicant. Based on the same logic,
an agency would not be required to create a new program to
extract that data that may be stored, but which cannot be retrieved
or generated by means of its existing programs.

"Notwithstanding an agency's inability to retrieve information
sought unless it modifies its programs or reprograms, it may often
be relatively simple to alter a program to retrieve the information
sought. Moreover, it may be more cost efficient to engage in
reprogramming than to delete portions of a printout by hand, for
example, or to engage in a physical search of paper records.
Redactions made manually and extensive searches are time
consuming and labor intensive, but minor reprogramming may
often be done quickly.

Format: Paper, Disk or Tape?

"FOIL's statement of intent indicates that agencies are required to
make records available ‘wherever and whenever feasible.' What
if the agency chooses disclose record by means of a computer
printout, but the applicant has requested the record on a computer
tape or disk? In Brownstone Publishers Inc. v. New York City
Department of Buildings [166 AD2d 294 (1990)], the question
involved an agency's obligation 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, Sup. Ct.,
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. Under those conditions, production of the
record would not involve creating a new record or reprogramming,
but rather merely a transfer of information into a format usable to
the applicant.

Fees

"Section 87(1)(b)(iii) of FOIL stated until October 15, 1982, that
an agency could charge up to twenty-five cents per photocopy or
the actual cost of reproduction unless a different fee was
prescribed by ‘law'. Chapter 73 of the Laws of 1982 replaced the
word ‘law' with the term ‘statute'. As described in its annual
report to the Governor and the Legislature by the Committee on
Open Government (created by the enactment of FOIL in 1974 and
reconstituted in the current statute), which was submitted in
December of 1981 and which recommended the amendment that is
now law:

‘The problem is that the term 'law' may include
regulations, local laws, or ordinances, for example.
As such, state agencies by means of regulation or
municipalities by means of local law may and in
some instances have established fees in excess of
twenty-five cents per photocopy, thereby resulting
in constructive denials of access. To remove this
problem, the word 'law' should be replaced by
'statute', thereby enabling an agency to charge more
than twenty-five cents only in situations in which an
act of the State Legislature, a statute, so specifies.'

"Therefore, prior to October 15, 1982, a local law, an ordinance, or
a regulation for instance, establishing a search fee or a fee in
excess of twenty-five cents per photocopy or higher than the actual
cost of reproduction was valid. However, under the amendment,
only an act of the State Legislature, a statute, would permit the
assessment of a fee higher than twenty-five cents per photocopy, a
fee that exceeds the actual cost of reproducing records that cannot
be photocopied, or any other fee, such as a fee for search. In
addition, it has been confirmed judicially that fees inconsistent
with the Freedom of Information Law may be validly charged only
when the authority to do so is conferred by a statute.

"The specific language of FOIL and the regulations promulgated
by the Committee indicate that, absent statutory authority, an
agency may charge fees only for the reproduction of records.
Section 87(1)(b) of the Freedom of Information Law states:

‘Each agency shall promulgate rules and regulations
in conformance with this article...and pursuant to
such general rules and regulations as may be
promulgated by the committee on open government
in conformity with the provisions of this article,
pertaining to the availability of records and
procedures to be followed, including, but not
limited to...

(iii) the fees for copies of records which shall not
exceed twenty-five cents per photocopy not in
excess of nine by fourteen inches, or the actual cost
of reproducing any other record, except when a
different fee is otherwise prescribed by statute.'

"The regulations promulgated by the Committee state in relevant
part that:

‘Except when a different fee is otherwise prescribed
by statute:

(a) There shall be no fee charged for the following:
(1) inspection of records;
(2) search for records; or
(3) any certification pursuant to this Part.'

"Based upon the foregoing, it is likely that a fee for reproducing
electronic information would most often involve the cost of
computer time, plus the cost of an information storage medium
(i.e., a computer tape) to which data is transferred.

"Although compliance with FOIL involves the use of public
employees' time and perhaps other costs, the Court of Appeals has
found that the Law is not intended to be given effect ‘on a cost-
accounting basis', but rather that "Meeting the public's legitimate
right of access to information concerning government is
fulfillment of a governmental obligation, not the gift of, or waste
of, public funds" [Doolan v. BOCES, 48 NY2d 341, 347 (1979)]."

In an effort to enhance compliance with and understanding of the Freedom of
Information Law, a copy of this response will be forwarded to the Town Board.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Town Board