December 11, 2008
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 information presented in your correspondence, unless otherwise indicated.
I have received your letter and the materials relating to it. You have sought an opinion concerning a request for assessment data sought by Mr. Martin Roby. As you are aware, Mr. Roby contacted me, and we discussed the matter. However, it appears that he might not have had all of the facts that you offered in the materials sent to this office.
In short, Mr. Roby has requested “an electronic copy of the current property inventory for every parcel in the Town of Stuyvesant...” From my perspective, there is little doubt that a town’s real property inventory records are generally accessible to the public under the Freedom of Information Law, as well as the Real Property Tax Law. I note that both §89(2)(c) of the former and §500 of the latter statutes were recently amended to indicate that the content of an inventory cannot be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy.
The issue, in my view, does not involve whether the contents of the records are accessible to the public, but rather the capacity of the Town to make the records available in the electronic form or format requested. As you know, and as discussed with both you and Mr. Roby, the Freedom of Information Law was recently amended in relation to information that is maintained electronically. Section 87(5)(a) states in relevant part that “An agency shall provide records on the medium requested by a person, if the agency can reasonably make such copy...” Similarly, §89)3)(a) states in part that: “When an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so.” I believe that those new provisions are based on a recognition that records and data are now frequently maintained in electronic storage systems, and that to give effect to the intent of the Freedom of Information Law, government agencies are required, when they have the ability to do so, “reasonably” or “with reasonable effort”, to disclose them in a manner consistent with developments in information technology.
As I understand the situation, the information sought by Mr. Roby was acquired by the Town from Columbia County, and you wrote that the Director of the County’s Real Property Tax Service Agency indicated that “in order to convert the information to excel format, a staff member (her Deputy Director) would have to ‘literally go in and out of each and every field for every parcel in the Town of Stuyvesant’ (there are 1074 parcels).”
In consideration of the process that would need to be undertaken and the time needed to honor Mr. Roby’s request, it is my opinion, and I believe that a court would determine, that neither the Town nor the County has the ability to provide access to the information sought in the format that has been requested “with reasonable effort.”
I point out that §87(5)(a) provides that if an agency cannot make records available in the medium requested, it may engage an “outside professional service” to do so. In that event, the agency may charge a fee based on the actual cost of reproducing the records, which would be “the actual cost to the agency of engaging an outside professional service” [§87(1)(c)(iii)], in which case the person requesting the records “shall be informed of the estimated cost...” [§87(1)(c)(iv)].
In sum, based on the information that you and the County’s Director of its Real Property Tax Service Agency, due to the effort that would necessarily be expended by the Town or the County, I do not believe that either is required to make the records available in the format requested by Mr. Roby, unless he is willing and able to pay the cost of engaging an outside professional service retained to do so.
I hope that I have been of assistance.
cc: Martin Roby