February 24, 2004
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, unless otherwise indicated.
I have received a variety of documentation from you concerning your request for certain records maintained by the Westchester County Clerk, and you have sought an advisory opinion pertaining to the Clerk’s obligation to provide the records in digital format.
By way of background, you wrote that you represent First American Real Estate Solutions ("FARES"), and your request involves "public land records both historical and day forward in Tiff images format from 1995 to present." The records at issue include real estate transfer tax returns that are confidential pursuant to the Tax Law, §1418, and it was determined that a download of the database that includes those returns would be unlawful. Further, the County’s Department of Information Technology concluded that redaction of return information from the land records database would involve the creation of a new record. As you are aware, §89(3) of the Freedom of Information Law indicates in part that an agency is not required to create a record in response to a request. It is your view, however, that through the use of "extraction data software", the confidential aspects of the database can be segregated from other data elements, and that, therefore, the County would not be creating a new record. According to your letter:
"The Extraction Data Software is nothing more than screen scraper software, which is software used to automate interaction between two systems through the terminal interface (designed for human use) of one of those systems - in this case between the County Clerk’s computer system and the storage device to be provided by FARES."
It was advised by your representatives that the software could either be provided to the County for the County’s "in-house use" or used through the Internet from a remote location, and you added that:
"...the process by which the Extraction Data Software extracts and assembles documents is such that documents that are not within the input parameters, whether confidential or not, are never accessed by the Extraction Data Software. In other words, the Extraction Data Software only accesses and pulls those pages that are a part of the particular document requested, and all other pages and documents, whether confidential or not, are completely ignored. This, in a sense, is ‘redaction,’ as the final product does not contain any confidential/non-disclosable records" (emphasis yours).
Your correspondence cites several judicial decisions, as well as advisory opinions rendered by this office. From my perspective, some of the case law and the opinions to which you referred may be out of date or inconsistent with the direction provided in the most recent and expansive decision relating to the matter, New York Public Interest Research Group v. Cohen, 729 NYS2d 379 (2001). It had been advised by this office that programming or reprogramming may involve the equivalent of creating a new record, and that, pursuant to §89(3), an agency is not required to do so to accommodate an applicant for a record or records. Nevertheless, I now concur with the decision rendered in New York Public Interest Research Group ("NYPIRG"), in which it was found that "programming", in that instance the process of entering queries as a means of segregating portions of an existing record from those that could be withheld from those other portions that would otherwise be accessible, did not involve the creation of a new record. On the contrary, the court determined that taking those steps involved extracting or generating portions of an existing record, and that the agency was required to do so to comply with law.
While I am not an expert in the area of information technology, it does not appear that any judicial decision or advisory opinion involves facts analogous to those presented here. In NYPIRG, through the process of entering queries with the use of its existing software, an agency was able to separate the public from the deniable elements of its database. In the circumstance that you suggested, the County would be required to install or utilize software that it does not now use or possess. In my view, an agency is not required to acquire or use software not in its possession to perform functions that it would not otherwise perform in order to accommodate the needs of a person or entity seeking records under the Freedom of Information Law. I believe that the agency may choose to do so, but that it is not required to do so.
If the extraction data software were to be used remotely as you suggested, it is my understanding that the entire database would effectively be disclosed, and that confidential portions would be "redacted" before being transmitted. It is unclear, however, whether or how there would be a guarantee or unequivocal assurance that confidential elements within the database would remain confidential. In essence, the County would seemingly lose full control over its database and would rely on representations by your firm or the software firm that the confidential data would never be accessed. In my opinion, the County is not required to make such a disclosure, even with such a representation.
On the other hand, if the County, as in NYPIRG, has the ability, through the process of entering queries, to segregate those portions of the database that are confidential from the remainder and make the remainder available in digital format, I believe that it is obliged to do so.
If I have misunderstood the facts or the technology, please so inform me.
I hope that I have been of assistance.
Robert J. Freeman
cc: Charlene M. Indelicato, County Attorney
Thomas Gardner, Assistant County Attorney