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August 1, 2001

FOIL-AO-12849

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 June 11 and the correspondence attached to it.

By way of background, you have requested records relating to counties' lead poisoning
prevention programs, and in your requests you indicated that they are intended to include records
"of every employee" associated with a lead poisoning prevention program, those involving "the
environmental management, environmental investigations and exposure assessment, lead
inspections, lead abatement, sampling for lead, environmental testing and reporting, notice and
demand of discontinuance of conditions conducive to lead poisoning, environmental intervention
and abatement, and environmental enforcement of dwelling units relating to" certain properties
inspected by county agencies, as well as other records relating to the inspection of properties. In
your requests, you specified that you are not seeking the names of children or their parents or
guardians, and in those instances in which records were sought from a county's "nursing division",
you wrote that you "provide a child specific authorization." Additionally, you asked that county
employees preserve all records falling within the scope of a request, for you are "concerned that
counties may destroy records after a FOIL request is made.".

You have sought an advisory opinion pertaining to your requests concerning:

"1. right to access and then copying of voluminous records;
2. right to ‘computer disc' and printouts;
3. destroying records after request;
4. files ‘kept' by employee."

In this regard, a key issue in my view involves the extent to which your request has
"reasonably described" the records as required by §89(3) of the Freedom of Information Law. It has
been held that a request reasonably describes the records when the agency can locate and identify
the records based on the terms of a request, and that to deny a request on the ground that it fails to
reasonably describe the records, an agency must establish that "the descriptions were insufficient
for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d
245, 249 (1986)].

The decision cited above involved thousands of records, and although it was found that the
agency could not reject the request due to its breadth, it was also stated that:

"respondents have failed to supply any proof whatsoever as to the
nature - or even the existence - of their indexing system: whether the
Department's files were indexed in a manner that would enable the
identification and location of documents in their possession (cf.
National Cable Tel. Assn. v Federal Communications Commn., 479
F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability
under Federal Freedom of Information Act, 5 USC section 552 (a)
(3), may be presented where agency's indexing system was such that
'the requested documents could not be identified by retracing a path
already trodden. It would have required a wholly new enterprise,
potentially requiring a search of every file in the possession of the
agency'])" (id. at 250).

In my opinion, whether a request reasonably describes the records sought, as suggested by the Court
of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing
or record-keeping system. In Konigsberg, it appears that the agency was able to locate the records
on the basis of an inmate's name and identification number. I am unaware of the nature of the filing
or recordkeeping systems employed by the agencies to which your requests were made. However,
from my perspective, insofar as records can be located with reasonable effort, a request meets the
requirement of reasonably describing the records. On the other hand, insofar as records cannot be
located except by means of a review of what may be hundreds or thousands of records individually,
the request in my opinion would not reasonably describe the records.

With respect to rights of access, as you are aware, 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. It is emphasized that the introductory language of §87(2) refers
to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions
that follow. In my view, the phrase quoted in the preceding sentence evidences a recognition on the
part of the Legislature that a single record or report, for example, might include portions that are
available under the statute, as well as portions that might justifiably be withheld. That being so, I
believe that it also imposes an obligation on an agency to review records sought, in their entirety,
to determine which portions, if any, might properly be withheld or deleted prior to disclosing the
remainder.

The Court of Appeals expressed and reiterated its general view of the intent of the Freedom
of Information Law in Gould v. New York City Police Department [89 NY2d 267 (1996)], stating
that:

"To ensure maximum access to government records, the 'exemptions
are to be narrowly construed, with the burden resting on the agency
to demonstrate that the requested material indeed qualifies for
exemption' (Matter of Hanig v. State of New York Dept. of Motor
Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750
see, Public Officers Law § 89[4][b]). As this Court has stated, '[o]nly
where the material requested falls squarely within the ambit of one
of these statutory exemptions may disclosure be withheld' (Matter of
Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393
N.E.2d 463)" (id., 275).

Just as significant, the Court in Gould repeatedly specified that a categorical denial of access
to records is inconsistent with the requirements of the Freedom of Information Law. In that case,
the Department contended that certain reports could be withheld in their entirety on the ground that
they fall within the exception regarding intra-agency materials, §87(2)(g). The Court, however,
wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data,
the exemption does not justify complete nondisclosure of the reports. We agree" (id., 276), and
stated as a general principle that "blanket exemptions for particular types of documents are inimical
to FOIL's policy of open government" (id., 275). The Court also offered guidance to agencies and
lower courts in determining rights of access and referred to several decisions it had previously
rendered, stating that:

"...to invoke one of the exemptions of section 87(2), the agency must
articulate 'particularized and specific justification' for not disclosing
requested documents (Matter of Fink vl. Lefkowitz, supra, 47 N.Y.2d,
at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to
determine whether withheld documents fall entirely within the scope
of the asserted exemption, it should conduct an in camera inspection
of representative documents and order disclosure of all nonexempt,
appropriately redacted material (see, Matter of Xerox Corp. v. Town
of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74;
Matter of Farbman & Sons v. New York City Health & Hosps. Corp.,
supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

In consideration of the nature of the records sought, it appears that two of the grounds for
denial may be pertinent.

Section 87(2)(b) permits an agency to withhold records to the extent that disclosure would
constitute "an unwarranted invasion of personal privacy." In my opinion, names of children or
other family members could, under the circumstances, be withheld. However, that issue appears to
have been rendered moot, for you indicated that you have no objection to the redaction of those
items or have received consent to disclose from the subjects of the records.

The other provision of significance, §87(2)(g), permits an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by
the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-
agency or intra-agency materials may be withheld, portions of such materials consisting of statistical
or factual information, instructions to staff that affect the public, final agency policy or
determinations or external audits must be made available, unless a different ground for denial could
appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials
that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

I point out that in Gould, supra, one of the contentions was that certain reports could be
withheld because they were not final and because they related to incidents for which no final
determination had been made. The Court rejected that finding and stated that:

"...we note that one court has suggested that complaint follow-up
reports are exempt from disclosure because they constitute nonfinal
intra-agency material, irrespective of whether the information
contained in the reports is 'factual data' (see, Matter of Scott v. Chief
Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers
Law §87[2][g][111]). However, under a plain reading of §87(2)(g),
the exemption for intra-agency material does not apply as long as the
material falls within any one of the provision's four enumerated
exceptions. Thus, intra-agency documents that contain 'statistical or
factual tabulations or data' are subject to FOIL disclosure, whether or
not embodied in a final agency policy or determination (see, Matter
of Farbman & Sons v. New York City Health & Hosp. Corp., 62
NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)..."
[Gould et al. v. New York City Police Department, 87 NY2d 267,
276 (1996)].

In short, that records do not relate to final action or determination would not represent an end
of an analysis of rights of access or an agency's obligation to review the entirety of their contents
to determine rights of access.

The Court also dealt with the issue of what constitutes "factual data" that must be disclosed
under §87(2)(g)(i). In its consideration of the matter, the Court found that:

"...Although the term 'factual data' is not defined by statute, the
meaning of the term can be discerned from the purpose underlying
the intra-agency exemption, which is 'to protect the deliberative
process of the government by ensuring that persons in an advisory
role [will] be able to express their opinions freely to agency decision
makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131,
132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d
546, 549]). Consistent with this limited aim to safeguard internal
government consultations and deliberations, the exemption does not
apply when the requested material consists of 'statistical or factual
tabulations or data' (Public Officers Law 87[2][g][i]. Factual data,
therefore, simply means objective information, in contrast to
opinions, ideas, or advice exchanged as part of the consultative or
deliberative process of government decision making (see, Matter of
Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on
op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v.
Yudelson, 68 AD2d 176, 181-182)" (id., 276-277).

Some aspects of records prepared by the staff of an agency, such as internal memoranda,
might include advice, recommendations or opinions, for example. To that extent, I believe that the
records sought may be withheld. However, I would conjecture that the contents of the records
consist largely of statistical or factual information that must be disclosed, again, perhaps following
the deletion or redaction of names or other personally identifying details pertaining to members of
the public in relation to lead poisoning.

With respect to the ability to acquire information on "computer discs" or "printouts", the
Freedom of Information Law pertains to agency records, and §86(4) of the Law 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 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 more than twenty
years ago 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 disc. On the other hand, if information
sought can be generated only through the use of new programs, so doing would in my opinion
represent the equivalent of creating a new record.

Questions and issues have arisen in relation to information maintained electronically
concerning §89(3) of the Freedom of Information Law, which states in part that an agency is not
required to create or prepare a record in response to a request. In this regard, often information
stored electronically can be extracted by means of keystrokes or queries entered 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. Transferring the data from one electronic storage medium to another involved relatively
little effort and cost; preparation of a printout, however, involved approximately a million pages and
a cost of ten thousand dollars for paper alone. 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)].

In another decision which 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).

Perhaps most pertinent and timely is a decision rendered less than three weeks ago
concerning a request for records, data and reports maintained by the New York City Department of
Health regarding "childhood blood-level screening levels" (New York Public Interest Research
Group v. Cohen and the New York City Department of Health, Supreme Court, New York County,
July 16, 2001; hereafter "NYPIRG"). The agency maintained much of the information in its
"LeadQuest" database. I am unaware whether the LeadQuest system is used by other counties in
the state. Nevertheless, the principles enunciated in that decision would likely be applicable with
respect to information maintained electronically in the context of your requests.

In NYPIRG, the Court described the facts, in brief, as follows:

"...the request for information in electronic format was denied on the
following grounds:

‘[S]uch records cannot be prepared in an electronic
format with individual identifying information
redacted, without the Department creating a unique
computer program, which the Department is not
required to prepare pursuant to Public Officer's Law
§89(3).'

"Instead, the agency agreed to print out the information at a cost of
twenty-five cents per page, and redact the relevant confidential
information by hand. Since the records consisted of approximately
50,000 pages, this would result in a charge to petitioner of $12,500."

It was conceded by an agency scientist that:

"...several months would be required to prepare a printed paper
record with hand redaction of confidential information, while it
would take only a few hours to program the computer to compile the
same data. He also confirmed that computer redaction is less prone
to error than manual redaction."

In consideration of the facts, the Court wrote that:

"The witnesses at the hearing established that DOH would only be
performing queries within LeadQuest, utilizing existing programs and
software. It is undisputed that providing the requested information
in electronic format would save time, money, labor and other
resources - maximizing the potential of the computer age.

"It makes little sense to implement computer systems that are faster
and have massive capacity for storage, yet limit access to and
dissemination of the material by emphasizing the physical format of
a record. FOIL declares that the public is entitled to maximum
access to public records [Fink v. Lefkowitz, 47 NY2d 567, 571
(1979)]. Denying petitioner's request based on such little
inconvenience to the agency would violate this policy."

Based on the foregoing, it was concluded that:

"To sustain respondents' positions would mean that any time the
computer is programmed to provide less than all the information
stored therein, a new record would have been prepared. Here all that
is involved is that DOH is being asked to provide less than all of the
available information. I find that in providing such limited
information DOH is providing data from records ‘possessed or
maintained' by it. There is no reason to differentiate between data
redacted by a computer and data redacted manually insofar as
whether or not the redacted information is a record ‘possessed or
maintained' by the agency.

"Moreover, rationality is lacking for a policy that denies a FOIL
request for data in electronic form when to redact the confidential
information would require only a few hours, whereas to perform the
redaction manually would take weeks or months (depending on the
number of employees engaged), and probably would not be as
accurate as computer generated redactions."

Assuming that your requests involve similar considerations, in my opinion, responses to
those requests, based on the precedent offered in NYPIRG, must involve the disclosure of data
stored electronically for which there is no basis for a denial of access.

Next, you questioned the propriety of "destroying records after [a] request" is made.
Potentially applicable may be §89(8) of the Freedom of Information Law and §240.65 of the Penal
Law, which contain essentially the same language. Specifically, the latter states that:

"A person is guilty of unlawful prevention of public access to records
when, with intent to prevent the public inspection of a record
pursuant to article six of the public officers law, he willfully conceals
or destroys any such record."

From my perspective, the preceding may be applicable in two circumstances: first, when an agency
employee receives a request for a record and indicates that the agency does not maintain the record
even though he or she knows that the agency does maintain the record; or second, when an agency
employee destroys a record following a request for that record in order to prevent public disclosure
of the record. I do not believe that §240.65 applies when an agency denies access to a record, even
though the basis for the denial may be inappropriate or erroneous, or when an agency cannot locate
a record that must be maintained.

I note that the Freedom of Information Law does not provide direction concerning the
retention and disposal of records. Relevant, however, is the "Local Government Records Law",
Article 57-A of the Arts and Cultural Affairs Law, which deals with the management, custody,
retention and disposal of records by local governments. For purposes of those provisions, §57.17(4)
of the Arts and Cultural Affairs Law defines "record" to mean:

"...any book, paper, map, photograph, or other information-recording
device, regardless of physical form or characteristic, that is made,
produced, executed, or received by any local government or officer
thereof pursuant to law or in connection with the transaction of public
business. Record as used herein shall not be deemed to include
library materials, extra copies of documents created only for
convenience of reference, and stocks of publications."

With respect to the retention and disposal of records, §57.25 of the Arts and Cultural Affairs
Law states in relevant part that:

"1. It shall be the responsibility of every local officer to maintain
records to adequately document the transaction of public business
and the services and programs for which such officer is responsible;
to retain and have custody of such records for so long as the records
are needed for the conduct of the business of the office; to adequately
protect such records; to cooperate with the local government's records
management officer on programs for the orderly and efficient
management of records including identification and management of
inactive records and identification and preservation of records of
enduring value; to dispose of records in accordance with legal
requirements; and to pass on to his successor records needed for the
continuing conduct of business of the office...

2. No local officer shall destroy, sell or otherwise dispose of any
public record without the consent of the commissioner of education.
The commissioner of education shall, after consultation with other
state agencies and with local government officers, determine the
minimum length of time that records need to be retained. Such
commissioner is authorized to develop, adopt by regulation, issue and
distribute to local governments retention and disposal schedules
establishing minimum retention periods..."

In view of the foregoing, records cannot be destroyed without the consent of the
Commissioner of Education, and local officials cannot destroy or dispose of records until the
minimum period for the retention of the records has been reached. The provisions relating to the
retention and disposal of records are carried out by a unit of the State Education Department, the
State Archives.

Lastly, I believe that files "kept" by employees that fall within the scope of your request
would, based on the definition of "record" appearing in §86(4) of the Freedom of Information Law,
constitute agency records subject to rights of access, irrespective of their characterization as
personal, unofficial, draft or otherwise. In a case in which an agency claimed, in essence, that it
could choose which documents it considered to be "records" for purposes of the Freedom of
Information Law, the state's highest court rejected that contention. As stated by the Court of
Appeals:

"...respondents' construction -- permitting an agency to engage in a
unilateral prescreening of those documents which it deems to be
outside the scope of FOIL -- would be inconsistent with the process
set forth in the statute. In enacting FOIL, the Legislature devised a
detailed system to insure that although FOIL's scope is broadly
defined to include all governmental records, there is a means by
which an agency may properly withhold from disclosure records
found to be exempt (see, Public Officers Law §87[2]; §89[2],[3].
Thus, FOIL provides that a request for access may be denied by an
agency in writing pursuant to Public Officers Law §89(3) to prevent
an unwarranted invasion of privacy (see, Public Officers Law §89[2])
or for one of the other enumerated reasons for exemption (see, Public
Officers Law §87[2]). A party seeking disclosure may challenge the
agency's assertion of an exemption by appealing within the agency
pursuant to Public Officers Law §89(4)(a). In the event that the
denial of access is upheld on the internal appeal, the statute
specifically authorizes a proceeding to obtain judicial review
pursuant to CPLR article 78 (see, Public Officers Law §89[4][b]).
Respondents' construction, if followed, would allow an agency to
bypass this statutory process. An agency could simply remove
documents which, in its opinion, were not within the scope of the
FOIL, thereby obviating the need to articulate a specific exemption
and avoiding review of its action. Thus, respondents' construction
would render much of the statutory exemption and review procedure
ineffective; to adopt this construction would be contrary to the
accepted principle that a statute should be interpreted so as to give
effect to all of its provisions...

"...as a practical matter, the procedure permitting an unreviewable
prescreening of documents -- which respondents urge us to engraft on
the statute -- could be used by an uncooperative and obdurate public
official or agency to block an entirely legitimate FOIL request. There
would be no way to prevent a custodian of records from removing a
public record from FOIL's reach by simply labeling it 'purely private'.
Such a construction, which could thwart the entire objective of FOIL
by creating an easy means of avoiding compliance, should be
rejected" [Capital Newspapers v. Whalen, 69 NY 2d 246, 253-254
(1987)].

In short, so long as records are maintained by or for an agency, I believe that they fall within
the framework of the Freedom of Information Law. As indicated previously, an issue relative to
records kept by employees may involve whether or the extent to which the request reasonably
describes the records; another would deal with the content of the records, particularly in
consideration of §87(2)(g) pertaining to inter-agency and intra-agency materials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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