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August 30, 2001

FOIL-AO-12920

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 advisory opinion concerning "whether
software developed with municipal funds is subject to the Freedom of Information Law." You
indicated that the issue relates to software developed "for the County Clerk with the intent that it be
freely shared with other counties."

In this regard, first, the Freedom of Information Law is applicable to all agency records and
§86(4) of that statute 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."

Although there is no decision rendered in New York of which I am aware dealing with the status of
software, it has been advised that software, because it is reflective of information in a physical form,
constitutes a "record" that falls within the coverage of the Freedom of Information Law.

Prior to the advent of computer technology, documentary materials equivalent in substance
to software would be and remain records. As I understand the nature of software, it consists of a
series of instructions designed to produce information that can be seen on a screen, printed, stored,
transferred and transmitted. Webopedia, the "online encyclopedia dedicated to computer
technology", defines "software" to mean "computer instructions or data" and states that "anything
that can be stored electronically is software." Based on the foregoing, since it exists in a physical
form and can be developed in the manner that you described, or perhaps purchased as a distinct
entity, an information product, I believe that software constitutes a "record" falling within the
coverage of the Freedom of Information Law.

Second, 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, based on the facts that you presented, none of the grounds for denial
would be applicable.

Relevant to rights of access in some circumstances might be §87(2)(d), which permits an
agency to withhold records that:

"are trade secrets or are submitted to an agency by a commercial
enterprise or derived from information obtained from a commercial
enterprise and which if disclosed would cause substantial injury to the
competitive position of the subject enterprise."

Situations have arisen, for example, in which a government agency carries out certain of its functions
as an entity in competition with private firms, and there is case law indicating that when a
governmental entity performs functions essentially commercial in nature in competition with private,
profit making entities, it may withhold records pursuant to §87(2)(d) in appropriate circumstances
(Syracuse & Oswego Motor Lines, Inc. v. Frank, Sup. Ct., Onondaga Cty., October 15, 1985).

My understanding of the matter is that the software developed by the County is not being
used in a manner in which the County acts, in essence, as a competitor with private entities. On the
contrary, to reiterate, you wrote that it was developed "with the intent that it be freely shared with
other counties." That being so, I do not believe that §87(2)(d) or any other ground for denial of
access could be asserted.

As you requested, a copy of this opinion will be sent to the County Attorney.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Michael West