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FOIL-AO-15298

May 16, 2005

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 asked whether "computer records used to develop a school budget [are] considered the same as hard copy worksheets which should be available to the public."

Based on the language of the Freedom of Information Law and judicial decisions, information stored in a computer is available to the same extent as paper records containing equivalent information.

In this regard, 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)].

In what may have been 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, id.). 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.

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.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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