July 18, 2006
FROM: Robert J. Freeman, Executive Director
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.
I have received your letter and the materials relating to it. You asked that I review a transcript of a conversation involving yourself, Robert McLaughlin, General Counsel to the New York Lottery, and Michelle Mattiske, the Lottery’s records access officer, and that I comment with respect to their "stated and implied positions on providing access to records that are not ‘final records’ and on providing access to records in the format specified by the requester, as well as....an agency’s obligation under the Freedom of Information Law to provide access to records that an agency deems to be part of a ‘fishing trip.’" The transcript indicates that you are attempting to obtain detailed breakdowns of financial records maintained by the Lottery, as well as figures reflecting "the annual sales generated by each of the New York Lottery’s sales agents, by game and in total, for each fiscal year since 1995-96, or as far back in time as available."
In this regard, I offer the following comments.
First, although the Lottery’s employees appear to have attempted to assist you and to understand the nature of the records of your interest, I point out that the regulations promulgated by the Committee on Open Government, which have the force and effect of law, describe the duties of a records access officer and provide in relevant part that:
"The records access officer is responsible for assuring that agency personnel....
(2) Assist persons seeking records to identify the records sought, if necessary, and when appropriate, indicate the manner in which the records are filed, retrieved or generated to assist persons in reasonably describing records...." [21 NYCRR §1401.2(b)].
Based on our conversations and the transcript, there appears to have been reluctance on the part of Lottery staff to provide information concerning the manner in which its records are maintained or can be generated.
As a general matter, I do not believe that there is any language in the Freedom of Information Law or its judicial construction that precludes a person seeking records from engaging in a "fishing trip." 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)].
Related and significant, however, is whether or the extent to which a request "reasonably describes" the records as required by §89(3) of the Freedom of Information Law. It has been held that a request reasonably describes the records when the agency can locate and identify the records based on the terms of a request, and that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].
The decision cited above involved thousands of records, and although it was found that the agency could not reject the request due to its breadth, it was also stated that:
"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system: whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency'])" (id. at 250).
In my opinion, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate's name and identification number. I am unaware of the nature of the filing or recordkeeping systems employed by the Lottery. However, from my perspective, insofar as records can be located with reasonable effort, a request meets the requirement of reasonably describing the records, even if an applicant is "fishing." On the other hand, insofar as records cannot be located except by means of a review of what may be hundreds or thousands of records individually, a request in my opinion would not reasonably describe the records.
Second, the transcript includes statements indicating that the Freedom of Information Law pertains to existing records, and that an agency is not required to create a record in response to a request. While I believe that those statements are generally accurate, judicial decisions offer clarification concerning their meaning in relation to information maintained electronically.
By way of background, the Freedom of Information Law pertains to all 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 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 minimal 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, I believe that it is required to do so.
Illustrative 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 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, 729 NYS2d 379 (2001); hereafter "NYPIRG"]. The agency maintained much of the information in its "LeadQuest" database.
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" (id., 380).
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" (id., 381).
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" (id., 382).
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" (id., 381-382).
As I interpret the foregoing, insofar as the Lottery has the ability to extract or generate the data of your interest with reasonable effort, it is obliged to do so to comply with the Freedom of Information Law.
Third, there is a suggestion the transcript that you may enjoy rights of access to a "final" product, but not the data that might have been used in preparation of that final document. In an exchange between you (BG) and Mr. McLaughlin (RM) involving your request for records used by KPMG, the Lottery’s auditor, the conversation was as follows:
BG: "You don’t keep these in a spreadsheet?
RM: This is how they’re provided to us by our auditor, KPMG.
BG: How do you provide the figures to KPMG?
RM: Well, it, I don’t know if that, that questions is relevant. The question is what’s our record? This is our record. The record we provide to KPMG becomes their working papers, they then provide us with this records and that’s what we’re providing you.
BG: But the record before you provide it to KPMG is your record.
RM: This is the final record.
BG: Are you telling me that you don’t maintain those records after you give them to KPMG?
RM: I’m not saying anything other than this is the final record. This is, this is the record..."
Based on a decision rendered by the Court of Appeals, the figures provided by the Lottery to KPMG must be disclosed, even though they are not "final." Relevant in this context is §87(2)(g), which permits an agency to withhold records that:
"are inter-agency or intra-agency materials which are not:
i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or
iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."
It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.
In Gould v. New York City Police Department [87 NY2d 267 (1996)], one of the contentions was that certain reports could be withheld because they were not final and because they related to incidents for which no final determination had been made. The Court of Appeals rejected that finding and stated that:
"...we note that one court has suggested that complaint follow-up reports are exempt from disclosure because they constitute nonfinal intra-agency material, irrespective of whether the information contained in the reports is 'factual data' (see, Matter of Scott v. Chief Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers Law §87[g]). However, under a plain reading of §87(2)(g), the exemption for intra-agency material does not apply as long as the material falls within any one of the provision's four enumerated exceptions. Thus, intra-agency documents that contain 'statistical or factual tabulations or data' are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination (see, Matter of Farbman & Sons v. New York City Health & Hosp. Corp., 62 NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)..." [Gould et al. v. New York City Police Department, 87 NY2d 267, 276 (1996)].
Based on the direction provided by the state’s highest court, that records do not relate to final action or determination would not represent an end of an analysis of rights of access or an agency's obligation to disclose its records.
The Court also dealt with the issue of what constitutes "factual data" that must be disclosed under §87(2)(g)(i). In its consideration of the matter, the Court found that:
"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]). Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[g][I]. Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182)" (id., 276-277).
As I understand your request, you are seeking the data given by the Lottery to KPMG in the latter’s preparation of "the final record." If that is so, and if the Lottery has the ability to locate the data with reasonable effort, the data would appear to be available pursuant to subparagraph (i) of §87(2)(g).
Lastly, the Lottery denied your request for records indicating sales generated by sales agents by game and in total for "as far back in time" as possible. The request was denied based on three exceptions to rights of access. In my view, none would justify a denial of access.
As you are aware, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.
The Court of Appeals expressed its general view of the intent of the Freedom of Information Law in Gould, stating that:
"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).
The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:
"...to invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink vl. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).
The first exception upon which the Lottery relied, §87(2)(b), authorizes an agency to withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." Here I point out that several judicial decisions, both New York and federal, that pertain to records about individuals in their business or professional capacities conclude that the records are not of a "personal nature." For instance, one involved a request for the names and addresses of mink and ranch fox farmers from a state agency (ASPCA v. NYS Department of Agriculture and Markets, Supreme Court, Albany County, May 10, 1989). In granting access, the court relied in part and quoted from an opinion rendered by this office in which it was advised that "the provisions concerning privacy in the Freedom of Information Law are intended to be asserted only with respect to 'personal' information relating to natural persons". The court held that:
"...the names and business addresses of individuals or entities engaged in animal farming for profit do not constitute information of a private nature, and this conclusion is not changed by the fact that a person's business address may also be the address of his or her residence. In interpreting the Federal Freedom of Information Law Act (5 USC 552), the Federal Courts have already drawn a distinction between information of a 'private' nature which may not be disclosed, and information of a 'business' nature which may be disclosed (see e.g., Cohen v. Environmental Protection Agency, 575 F Supp. 425 (D.C.D.C. 1983)."
In another decision, Newsday, Inc. v. New York State Department of Health (Supreme Court, Albany County, October 15, 1991)], data acquired by the State Department of Health concerning the performance of open heart surgery by hospitals and individual surgeons was requested. Although the Department provided statistics relating to surgeons, it withheld their identities. In response to a request for an advisory opinion, it was advised by this office, based upon the New York Freedom of Information Law and judicial interpretations of the federal Freedom of Information Act, that the names should be disclosed. The court agreed and cited the opinion rendered by this office.
Like the Freedom of Information Law, the federal Act includes an exception to rights of access designed to protect personal privacy. Specifically, 5 U.S.C. 552(b)(6) states that rights conferred by the Act do not apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." In construing that provision, federal courts have held that the exception:
"was intended by Congress to protect individuals from public disclosure of 'intimate details of their lives, whether the disclosure be of personnel files, medical files or other similar files'. Board of Trade of City of Chicago v. Commodity Futures Trading Com'n supra, 627 F.2d at 399, quoting Rural Housing Alliance v. U.S. Dep't of Agriculture, 498 F.2d 73, 77 (D.C. Cir. 1974); see Robles v. EOA, 484 F.2d 843, 845 (4th Cir. 1973). Although the opinion in Rural Housing stated that the exemption 'is phrased broadly to protect individuals from a wide range of embarrassing disclosures', 498 F.2d at 77, the context makes clear the court's recognition that the disclosures with which the statute is concerned are those involving matters of an intimate personal nature. Because of its intimate personal nature, information regarding 'marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payment, alcoholic consumption, family fights, reputation, and so on' falls within the ambit of Exemption 4. Id. By contrast, as Judge Robinson stated in the Chicago Board of Trade case, 627 F.2d at 399, the decisions of this court have established that information connected with professional relationships does not qualify for the exemption" [Sims v. Central Intelligence Agency, 642 F.2d 562, 573-573 (1980)].
In my opinion and as suggested in the decisions cited above, the exception concerning privacy, does not apply to the Lottery’s sales agents, for its records relate to persons in their business capacities.
The exception concerning privacy and another, §87(2)(d), were cited in the denial of access as grounds for withholding figures regarding sales by agents. The latter provision authorizes an agency withhold records or portions thereof that:
"are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise;"
The rationale for the assertion of §87(2)(d) is based on a finding that "release of the requested information would provide an unfair competitive advantage to a retailer’s competitor." I cannot envision how the Lottery could demonstrate that to be so to a court. That a particular retailer sells lottery tickets is not a secret; on the contrary, many have signs advertising the sale of lottery tickets or that their sales led to winnings of certain amounts.
Most importantly in my view, sales of lottery tickets involve only one aspect of a retailer’s sales or income. By means of example, I buy lottery tickets occasionally from any one of several retailers, including Stewart’s convenience stores, a Hess gas station, and Price Chopper and Hannaford supermarkets. I simply cannot envision how the disclosure of lottery sales figures would "cause substantial injury" to the competitive position of retailers whose gross sales are in the millions of dollars, and whose sales of lottery tickets represent a small fraction of their gross revenues.
In short, I do not believe that the figures you seek are "personal", that they reflect amounts that approach the gross revenues or income of individuals or corporate entities, or that the Lottery could meet its burden of proving that disclosure would cause substantial injury to the competitive position of its agents.
The remaining exception to rights of access cited by the Lottery, §87(2)(f), authorizes an agency to withhold records insofar as disclosure "could endanger the life or safety of any person." Specifically, it was contended that release of sales figures would expose "the nature of their business and the amount of cash on hand to the public and potential criminal elements." Again, in consideration of what is known to the public, I do not believe that the Lottery could justify the assertion of the exception [see American Broadcasting Companies, Inc. v. Siebert, 442 NYS2d 855 (1981) concerning check cashing businesses whose locations are known to the public]. The nature of the businesses of lottery sales agents is known; the Lottery promotes sales, particularly when there are large jackpots, which may create lines of potential purchasers in full view of any person or passerby. Even in that circumstance, no member of the public can know the amount of cash on hand in a given establishment. Ordinarily, a large supermarket would likely have more cash on hand than a convenience store. If both sell lottery tickets, could it be proven to a court’s satisfaction that disclosure of the records sought is likely to create greater attraction to "criminal elements" to the supermarket than the convenience store? I doubt that would be so.
In sum, it is my view that the records sought involving sales figures relating to lotto retail sales agents must be disclosed, for the exceptions to rights of access asserted by the Lottery cannot be justified.
I hope that I have been of assistance.
Robert J. Freeman
cc: Robert McLaughlin