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FOIL-AO-13777

December 23, 2002

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 and the materials attached to it. You have sought an advisory
opinion on behalf of Newsday in relation to a response to a request by reporter Victor Ramos for "an
electronic copy of the worksheet files (maintained in Microsoft Excel format of the Town of North
Hempstead's proposed 2003 budget."

In its response, the Town indicated that Mr. Ramos had "already been provided with a
complete printout of the worksheets", but that the "Excel worksheet file maintained by the Town
includes inter-agency and/or intra-agency materials which reflect the opinions, advice and
recommendations of the Director of Operations and the Comptroller's Office" and that "[s]ignificant
editing and/or programming would be required in order to remove the protected information from
the existing Excel worksheet file." It was concluded that "[d]oing so will also create a new computer
file, which is beyond the requirements of the Freedom of Information Law."

In this regard, first, if my understanding of the matter is accurate, Mr. Ramos received hard
copy printouts of the "same worksheets" that he requested in electronic form. If worksheets can be
printed out, it does not follow, in my view, that equivalent information cannot be made available in
the requested format. I note that in perhaps the first decision rendered under the Freedom of
Information Law concerning records stored electronically, it was held that the format in which the
records are maintained does not impact upon rights of access [Szikszay v. Buelow, 436 NYS2d, 558,
107 Misc.2d 886 (1981)]. That case involved an assessment roll that was clearly available in the
traditional paper format that was found to be equally available in computer tape format.

Second, the Freedom of Information Law has been construed expansively in relation to
matters involving records stored electronically. As you are aware, that statute 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, as suggested in the response by the
Town, 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 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, I believe that that an agency must 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 is a decision rendered a year 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. In that
case, 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."

When requests involve similar considerations, in my opinion, responses to them 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. In this instance, it appears that the Town is required to engage
in the kinds of steps described in NYPIRG in order to make available in Excel format those portions
of the records that consist of "statistical or factual tabulations or data" that are accessible under
§87(2)(g)(i).

Third, in a case that focused on budget worksheets that reached the Court of Appeals,it was
held that numerical figures, including estimates and projections of proposed expenditures, are
accessible, even though they may have been advisory and subject to change. In that case, I believe
that the records at issue contained three columns of numbers related to certain areas of expenditures.
One column consisted of a breakdown of expenditures for the current fiscal year; the second
consisted of a breakdown of proposed expenditures recommended by a state agency; the third
consisted of a breakdown of proposed expenditures recommended by a budget examiner for the
Division of the Budget. Although the latter two columns were merely estimates and subject to
modification, and, therefore, were considered by the agency to be predecisional and advisory, they
were found to be "statistical tabulations" accessible under the Freedom of Information Law as
originally enacted [see Dunlea v. Goldmark, 380 NYS 2d 496, aff'd 54 AD 2d 446, aff'd 43 NY 2d
754 (1977)]. At that time, the Freedom of Information Law granted access to "statistical or factual
tabulations" [see original Law, §88(1)(d)]. Currently, §87(2)(g)(i) requires the disclosure of
"statistical or factual tabulations or data". As stated by the Appellate Division in Dunlea:

"[I]t is readily apparent that the language statistical or factual
tabulation was meant to be something other than an expression of
opinion or naked argument for or against a certain position. The
present record contains the form used for work sheets and it
apparently was designed to accomplish a statistical or factual
presentation of data primarily in tabulation form. In view of the
broad policy of public access expressed in §85 the work sheets have
been shown by the appellants as being not a record made available in
§88" (54 Ad 2d 446, 448)."

The Court was also aware of the fact that the records were used in the deliberative process, stating
that:

"The mere fact that the document is a part of the deliberative process
is irrelevant in New York State because §88 clearly makes the back-
up factual or statistical information to a final decision available to the
public. This necessarily means that the deliberative process is to be
a subject of examination although limited to tabulations. In
particular, there is no statutory requirement that such data be limited
to 'objective' information and there no apparent necessity for such a
limitation" (id. at 449).

Based upon the language of the determination quoted above, which was affirmed by the state's
highest court, it is my view that the records in question, to the extent that they consist of "statistical
or factual tabulations or data", are accessible, unless a provision other than §87(2)(g) could be
asserted as a basis for denial.

Lastly, the Town Attorney wrote that the record made available to Mr. Ramos "was a
snapshot of the data as it existed on a certain date" and that "[c]hanges and modifications occurred
since that time until the final budget was adopted." That being so, she wrote that the document
requested "ceased to exist in Excel format." She added that "the record in the form requested
contains computer access codes which, if disclosed, would permit the recipient to shift, add, delete
or alter information without authority to do so."

If a record represents a "snapshot"of data at a particular and is constantly changing, I would
agree that an agency would not be required to recreate what had formerly existed on a given date.
However, I believe, in general, that an agency is required to provide the data representing snapshot
of a given record, unless there is a basis for a denial of access.

With respect to the ability to "shift, add, delete or alter information", if indeed disclosure
would enable a recipient of records to engage in those actions on an agency's computers remotely,
§87(2)(i) may be applicable. That provision, which was amended last year, permits an agency to
withhold records insofar as disclosure "would jeopardize an agency's capacity to guarantee the
security of its information technology assets, such assets encompassing both electronic information
systems and infrastructures." However, if disclosure would merely enable a recipient of data to
engage in computing, i.e., shifting, adding or otherwise analyzing data, on his or her own computer,
and without the capacity to shift, add or alter data stored by the Town and in its possession, I do not
believe that the cited provision would be pertinent.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:jm

cc: Bonnie Chaikin
Linda B. Zuech
Victor Ramos