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FOIL-AO-15923

April 20, 2006

 

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.

Dear

I have received materials from you concerning the obligations of the Department of Correctional Services in response to a request made pursuant to the Freedom of Information Law.

By way of background, in an effort to learn of convicted felons who acquire hunting licenses, despite a law forbidding them from owning or carrying firearms, on January 5, you requested a database pertaining to convicted felons who have been paroled from the Department of Correctional Services. The receipt of your request was acknowledged the following day, and you were informed that you could expect a response by February 6. On February 17, you were notified that two computer tapes containing the requested data had been prepared and would be made available upon payment of eighty dollars. You paid the fee and received the tapes.

The data was stored in "cartridges that appear to be from the 80's" and were unintelligible and could not be read. Having contacted representatives of Intel, the manufacturer of the cartridges:

"...they said the Dept. Of Corrections probably gave these to me because their data is probably on a data base that uses these - they also said they have no idea why they couldn’t download it to a disk or a floppy, they believe it would have been easy enough. They said the only way to read the tape is to find a computing service bureau that has the ability to read an IBM mainframe 3480 tape cartridge. They are becoming obsolete...

" They said they can’t believe the state gave these to me. They said they are at least ten to 15 years old."

When you contacted the Department to ask whether the data can be made available on a disk that renders it readable, you were told that "they can make a disk but...won’t", and that there is no obligation to "create different formats." You contacted me to discuss the matter and then the Department’s assistant to the public information officer, and described your conversation as follows:

"I told him what Bob said about case law saying that if they can make a disk and I’m willing to pay, then they have to do it. He said then that the information is available on their website. I asked how to access it. He didn’t know but said if our IT guys were really good they might be able to figure it out."

In this regard, I offer the following comments.

First, the Freedom of Information Law has been construed expansively in relation to matters involving records stored electronically. As you are likely 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 disk. 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 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, the courts have directed that an agency must follow that 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).

In short, assuming that the Department is able to transfer the requested data to a storage medium usable to you and you are willing to pay the requisite fee, based on judicial decisions, the Department is required to do so.

Second, because the cartridges made available to you are, according to the manufacturer, obsolete, it would be reasonable in my view for the Department to refund your payment of eighty dollars and calculate the fee for data transferred to disks based on §87(1)(b)(iii) of the Freedom of Information Law. That provision authorizes an agency to assess a fee for the copying of records by means other than photocopying, based on the actual cost of reproduction.

Lastly, the delay that you experienced, in my opinion, reflected inconsistency with the Freedom of Information Law as recently amended. The statute provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied..."

It is noted that new language was added to that provision on May 3 (Chapter 22, Laws of 2005) stating that:

"If circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part."

Based on the foregoing, an agency must grant access to records, deny access in writing, or acknowledge the receipt of a request within five business days of receipt of a request. When an acknowledgement is given, it must include an approximate date within twenty business days indicating when it can be anticipated that a request will be granted or denied. However, if it is known that circumstances prevent the agency from granting access within twenty business days, or if the agency cannot grant access by the approximate date given and needs more than twenty business days to grant access, it must provide a written explanation of its inability to do so and a specific date by which it will grant access. That date must be reasonable in consideration of the circumstances of the request.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Darren Ayotte
Chad Powell
Anne Marie McGrath