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FOIL-AO-14773

July 6, 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 facts presented in your correspondence, unless otherwise indicated.

Dear

I have received your correspondence and related materials concerning your request for records maintained by the Office of the Suffolk County Clerk. The request involves all mortgages, deeds, map abstracts and a variety of other records filed with the Clerk since January 1, 1983, as well as additional categories of records, such as judgments, federal tax liens and uniform commercial code filings since January 1, 1993. You asked that the records be made available "in the electronic format regularly maintained by the County, or, if electronic images are not maintained by the County, then in microfilm format."

In consideration of your comments and those of Colleen M. Fondulis, Assistant County Attorney, who responded to you, I offer the following remarks.

First, although there is nothing in the Freedom of Information Law that limits the number or scope of records that may be requested, your request clearly involves voluminous material comprising thousands of documents. In considering a request that may have been similar, the court upheld the agency's denial, stating that:

"Petitioner's actual demand transcends a normal or routine request by a taxpayer. It violates individual privacy interests of thousands of persons...and would bring in its wake an enormous administrative burden that would interfere with the day-to-day operations of an already heavily burdened bureaucracy" (Fisher & Fisher v. Davison, Supreme Court, New York Cty., Oct. 6, 1988).

In view of the nature of your request, the holding in Fisher & Fisher might be pertinent.

Second, because you have requested records in "electronic format", you have contended that the fee for copying should be based on §87(1)(b)(iii) of the Freedom of Information Law, rather than provisions found in §§8019 and 8021 of the Civil Practice Law and Rules (CPLR). Those provisions authorize county clerks to assess fees on a per page basis. Since you are not requesting copies of "pages", but rather the contents of pages in electronic format, it your view that the Freedom of Information Law should govern with respect to the assessment of fees.

The fee for copies of records other than photocopies, according to §87(1)(b)(iii) of the Freedom of Information Law, is based on the actual cost of reproduction, unless a different fee is prescribed by statute. The question in this instance is whether a fee assessed by a county clerk for records made available in electronic media should be based on the actual cost of reproduction in accordance with the language of the Freedom of Information Law or §8019 of the CPLR. I know of no judicial determination that has considered the issue.

As you may be aware, §§8018 through 8021 of the CPLR require that county clerks charge certain fees in their capacities as clerks of court and other than as clerks of court. Since those fees are assessed pursuant to statutes other than the Freedom of Information Law, I believe that they may exceed those permitted under the Freedom of Information Law. As stated in §8019, "The fees of a county clerk specified in this article shall supersede the fees allowed by any other statute for the same services...".

By means of example, subdivision (f) of §8019, entitled "Copies of records", states in relevant part that:

"The following fees, up to a maximum of thirty dollars per record shall be payable to a county clerk or register for copies of the records of the office except records filed under the uniform commercial code:

1. to prepare a copy of any paper or record on file in his office, except as otherwise provided, sixty-five cents per page with a minimum fee of one dollar thirty cents."

If a record subject to subdivision (f) is reproduced on paper, i.e., by means of a photocopy machine, it would be clear in my opinion that the Freedom of Information Law would not be applicable and that a county clerk could charge "sixty-five cents per page with a minimum fee of one dollar thirty cents..." If an equivalent record is no longer maintained on paper or is not reproduced onto a "page", it is unclear whether that would transfer the basis for charging a fee to the Freedom of Information Law, or whether §8019(f) would continue to govern.

While I am unfamiliar with the legislative history of §8019, I would conjecture that the Legislature in enacting that and other sections within Article 80 of the CPLR, intended that county clerks, in their capacities as clerks of court and otherwise, carry out certain duties and assess certain fees for performing particular services. When those provisions were initially enacted in 1963, the advances in information technology that have become commonplace could not have been envisioned. It would seem that the provisions concerning fees were intended, perhaps in part, to generate revenue. If that is so, the duplication of records in electronic form would involve a minimal actual cost, thereby defeating the intent of those statutes. Since I am unfamiliar with the intent of the State Legislature concerning the provisions of the CPLR at issue, it is unclear which statute would be found to apply by a court.

Third, assuming that the request is completely appropriate and that there is no issue involving fees, it is questionable in my view whether the commentary offered by Ms. Fondulis concerning the absence of an obligation to create records is fully consistent with the judicial interpretation of the Freedom of Information Law. As I understand the County’s retrieval system, records in many instances can be extracted individually, but not in the array. Ms. Fondulis wrote that the County Clerk’s records that are maintained electronically are stored in a mainframe computer, and that to honor your request, staff:

"...would have to extract the data from the mainframe, and, since the relational software is contained on the mainframe, the Clerk’s office would then need to create a ‘relational’ software program and, thereafter, a ‘front end’ user interface program would need to be written in order for the data to be accessible on a CD-ROM. Thus, the Clerk’s office would need to create a record, in a format and with programming, that is not pre-existing and the New York Freedom of Information Law (FOIL) does not require the Suffolk County Clerk’s office to create a record in order to comply with this FOIL request."

In this regard, a relatively recent decision focused on the creation of records and the extraction or generation of records electronically, and it may be pertinent to the matter. The case involved a request for records, data and reports maintained by the New York City Department of Health concerning "childhood blood-level screening levels" [New York Public Interest Research Group v. Cohen and the New York City Department of Health, 729 NYS 2d 379 (2001) hereafter "NYPIRG"]. The agency maintained much of the information in its "LeadQuest" database, and the principles enunciated in that decision may be applicable with respect to information maintained electronically in the context of your request.

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."

Unlike NYPIRG, your request does not involve a situation in which portions of an existing records must be segregated. However, if the County has the ability to honor the request with reasonable effort, as in NYPIRG, that decision suggests that the County would be required to do so. Whether the County has the ability to do so with reasonable effort is unknown to me.

Next, there are instances in which records may be available individually, but in which a request for a group of those records maintained within a list or its equivalent may be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy [see Freedom of Information Law, §§87(2)(b) and 89(2)(b)]. As you know, §89(2)(b)(iii) indicates that an unwarranted invasion of personal privacy includes the sale or release of a list of names and addresses when the list would be used for commercial or fund-raising purposes. In my view, that provision is intended to pertain to names of natural persons and their residences. Some of the materials at issue would appear to involve, perhaps in part, names and addresses in a business or commercial context. In those cases, I do not believe that there would be anything "personal" about the information or that §89(2)(b)(iii) would apply. That provision, however, may involve additional considerations.

As a general matter, when records are accessible under the Freedom of Information Law, it has been held that they should be made equally available to any person, regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals, the state's highest court, has held that:

"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on government decision-making, its ambit is not confined to records actually used in the decision-making process. (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

The only exception to the principles described above involves §89(2)(b)(iii), which represents what might be viewed as an internal conflict in the law. Although the status of an applicant and the purposes for which a request is made are irrelevant to rights of access and an agency cannot ordinarily inquire as to the intended use of records, due to the language of §89(2)(b)(iii), rights of access to a list of names and addresses, or equivalent records, may be contingent upon the purpose for which a request is made [see Scott, Sardano & Pomeranz v. Records Access Officer of Syracuse, 65 NY 2d 294, 491 NYS 2d 289 (1985); Goodstein v. Shaw, 463 NYS 2d 162 (1983)].

In a case involving a list of names and addresses in which Suffolk County inquired as to the purpose for which the list was requested, it was found that an agency could make such an inquiry. Specifically, in Golbert v. Suffolk County Department of Consumer Affairs (Supreme Court, Suffolk County, September 5, 1980), the Court cited and apparently relied upon an opinion rendered by this office in which it was advised that an agency may appropriately require that an applicant for a list of names and addresses provide an assurance that a list of names and addresses will not be used for commercial or fund-raising purposes. In that decision, it was stated that:

"The Court agrees with petitioner's attorney that nowhere in the record does it appear that petitioner intends to use the information sought for commercial or fund-raising purposes. However, the reason for that deficiency in the record is that all efforts by respondents to receive petitioner's assurance that the information sought would not be so used apparently were unsuccessful. Without that assurance the respondents could reasonably infer that petitioner did want to use the information for commercial or fund-raising purposes."

In addition, it was held that:

"[U]nder the circumstances, the Court finds that it was not unreasonable for respondents to require petitioner to submit a certification that the information sought would not be used for commercial purposes. Petitioner has failed to establish that the respondents denial or petitioner's request for information constituted an abuse of discretion as a matter of law, and the Court declines to substitute its judgement for that of the respondents" (id.).

A similar conclusion was reached in a more recent decision, [Siegel, Fenchel & Peddy, P.C. v. Central Pine Barrens Joint Planning & Policy Commission, 251 AD2d 670, 676 NYS 191, 193 (1998)].

While your request may not involve a list per se, it has been held, in essence, that a request for records that would be used to develop a list of names and addresses to be used for a commercial purpose may be denied [see Scott, Sardano & Pomeranz, supra, 65 NY 2d 294 (1985)]. That decision dealt with a request by a law firm for copies of motor vehicle accident reports to be used for the purpose of direct mail solicitation of accident victims. Although the Court of Appeals found that accident reports are available, in view of the intended use of the reports, i.e., to create a mailing list for a commercial purpose, it was determined that names and addresses of accident victims could be withheld based on considerations of privacy.

Again, it does not appear that all of the categories of the records sought would necessarily implicate §89(2)(b)(iii). However, where that provision is applicable, it appears that the County could deny access.

Lastly, Ms. Fondulis wrote that "[t]he courts have consistently held that court records are not subject to disclosure under FOIL, even if those court records are possessed by other agencies." The Court of Appeals in 2002 unanimously rejected that contention, holding that court records that come into the possession of an agency are agency records subject to rights conferred by the Freedom of Information Law [Newsday v. Empire State Development Corporation, 98 NY2d 359].

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Colleen M. Fondulis