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FOIL-AO-17606

 

 

 

 

                                                                                                March 31, 2009

 

 

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:

            We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to a request for records made to the Nassau County Clerk.

            Specifically, you requested electronic or digital copies of all land records from 1986 to present, all judgment records from 1998 to present, and all electronic indexes.  In response, based on a concern for identity theft, the County indicated that it was seeking cost estimates from a vendor to “scrub” social security numbers from the requested records prior to their release.  After receiving no response to your request for a date by which you could expect to receive access to the requested documents, you appealed the County’s constructive denial of access, noting that it had set no time frame for responding to your request, and that due to the amendment made to the privacy provisions of the Freedom of Information Law, there was no longer any basis for denying access to portions of the land records.

            In response to your appeal, the County denied access to the requested land records on the ground that disclosure of social security numbers could facilitate identity theft and thereby endanger life or safety.  Relying in part on Goyer v. NYS Department of Environmental Conservation (Supreme Court, Albany County, November 29, 2005), and a recent amendment to the Personal Privacy Protection Law that will not become effective until 2010, the County determined that it is permitted to deny access to social security numbers indicated on the records, because disclosure could endanger the life or safety of a person (§87[2][f]).  Differentiating records relating to real property from those that do not, the County denied access to those portions of the non-real property records, the disclosure of which would cause an unwarranted invasion of personal privacy.   Further, in response to your assertion that you would not pay for the County to redact social security numbers from the requested documents, the County determined that it is not obligated to provide the records to you.

            In an effort to provide guidance with respect to the multitude of issues raised in your request, we offer the following comments, initially, with respect to the safety issue and later, with respect to the issue of cost and fees.

I.  Access to Land Records in Electronic Format

            First, as a general matter, 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 (j) of the law.

            As indicated by the County, one of the exceptions to rights of access, §87(2)(f), authorizes an agency to withhold records to the extent that disclosure “could endanger the life or safety of any person.”  Typically, this provision is invoked to protect the physical well being of a person or persons, not their financial well being, and we know of no case law that would support the County’s interpretation of this provision in this manner.

            Further, as you and the County both noted, the Freedom of Information Law was amended in August of 2008 with respect to the disclosure of records and what constitutes an unwarranted invasion of personal privacy.  Section 89(2)(c) now specifies as follows:

“(iv) when a record or group of records related to the right, title or interest in real property, or relates to the inventory, status or characteristics of real property, in which case disclosure and providing copies of such record or group of records shall not be deemed an unwarranted invasion of personal privacy.”

In short, the statute now prohibits an agency from denying access to records related to real property on the ground that disclosure would cause an unwarranted invasion of personal privacy. 

            It is our understanding that this provision was added to clarify rights of access to assessment records, subsequent to a judicial decision that appeared to limit disclosure and which created confusion and difficulties in gaining access [COMPS, Inc. v. Town of Islip, 822 NYS2d 768 (2006)]. The broad scope of the plain language of the amendment, in our opinion, requires disclosure of records related to rights in real property, unless another provision may properly be asserted to deny access.

            Further, based on our research, records relating to real property, or “land records”  maintained by the Nassau County Clerk, are available for a fee from the County Clerk’s office, in their entirety, either in paper or electronic format.  Other counties make such records available online.  In our opinion, access to land records maintained by county clerks, in their entirety, either in the office or online, is consistent with the requirements of the Freedom of Information Law, and there would be no basis to deny access to portions of such records when accessed in bulk, as is the case here.

            There is one decision of which we are aware, in which a court permitted an agency to redact information from records that were required to be made available by statute.  Section 66-a of the Public Officers Law states that:

"Notwithstanding any inconsistent provisions of law, general, special or local, or any limitation contained in the provision of any city charter, all reports and records of any accident, kept or maintained by the state police or by the police department or force of any county, city, town, village or other district of the state, shall be open to the inspection of any person having an interest therein, or of such person's attorney or agent, even though the state or a municipal corporation or other subdivision thereof may have been involved in the accident; except that the authorities having custody of such reports or records may prescribe reasonable rules and regulations in regard to the time and manner of such inspection, and may withhold from inspection any reports or records the disclosure of which would interfere with the investigation or prosecution by such authorities of a crime involved in or connected with the accident."

            The Freedom of Information Law is consistent with the language quoted above, for while accident reports are generally available, §87(2)(e)(i) of the Freedom of Information Law states in relevant part that records compiled for law enforcement purposes may be withheld to the extent that disclosure would "interfere with law enforcement investigations or judicial proceedings."  Further, the state's highest court, the Court of Appeals, has held that a right of access to accident reports "is not contingent upon the showing of some cognizable interest other than that inhering in being a member of the public" [Scott, Sardano & Pomeranz v. Records Access Officer, 65 NY 2d 294, 491 NYS 2d 289, 291 (1985)].  Therefore, unless disclosure would interfere with a criminal investigation, the statute requires that an accident report be made available to any person, including one who had no involvement in the accident.

            The court’s analysis of the matter in Scott, Sardano & Pomeranz, supra, may be relevant here, because the Court of Appeals authorized the agency to withhold names and address of individuals from accident reports when they are sought for commercial or fund-raising purposes based on the exception set forth in §87(2)(b), which permits an agency to withhold information which if released would constitute an unwarranted invasion of personal privacy.  One of the examples of unwarranted invasions of personal privacy involves the sale of a list of names and addresses when the list would be used for solicitation or fund-raising [see §89(2)(b)(iii)].  Because the records at issue were sought by a law firm for the purpose of soliciting accident victims, the court permitted the City to delete names and addresses of the victims before making the reports available (see §§ 87[2][b] and 89[2][b]).

            Based on the narrowness of the ruling in Scott, Sardano & Pomeranz, supra, however, it is our opinion that the Court did not give permission for an agency to redact anything from accident reports other than names and addresses when they are to be used for commercial or fundraising purposes; there is nothing in the Court’s decision or in the statute that would authorize an agency to withhold the drivers’ license identification number and/or dates of birth, for example, information that is typically collected on an accident report. 

            We note that the Legislature amended §3-220 of the Election Law, which requires complete disclosure of registration records, permitting an agency to withhold a voter’s driver’s license number and social security number.  Without any corresponding amendment to §66-a of the Public Officers Law, it is our opinion that there is no such exception for such information to be redacted from accident reports.  Similarly, because there has been no statutory change permitting an agency to redact such information from records relating to an interest in real property, we believe none exists. 

            The County relies on Goyer v. NYS Dept of Environmental Conservation, 12 Misc.2d 261, 813 NYS2d 628 (Supreme Court, Albany County) November 29, 2005 in support of its contention that disclosure would endanger the lives and safety of those persons listed in the database, as a result of identity theft.  We believe the database and the court’s ruling in Goyer can be distinguished from the situation here.

            In Goyer, the Department of Environmental Conservation denied access to records regarding individuals who obtained recreational hunting licenses on the grounds that disclosure would cause an unwarranted invasion of personal privacy and could endanger the lives and safety of individual persons.  We note that the court’s analysis regarding safety was based on the concern that disclosure “would reveal the residential addresses of individuals who potentially have firearms in their residences...” and “that this information, in the wrong hands, could put the safety of the license holders or others nearby in jeopardy.”  Goyer at 272.  Disregarding the agency’s argument that identity theft would endanger lives and safety, the court instead ruled that what was dangerous was the knowledge of the likelihood that there would be firearms at a particular residence.  In this instance, there is no such danger.

            In further support of its determination, the County relied on recent amendments to the Personal Privacy Protection Law which will become effective on January 1, 2010.  That statute will impose certain prohibitions on the state and its political subdivisions, such as counties, concerning the release or disclosure of social security numbers.  However, the amendment clarifies as follows:

“(g) Nothing in this section shall prohibit a county clerk or court from making available a document publicly recorded or filed prior to the effective date of this section, provided that if any individual requests redaction of a social security number from a publicly recorded document available to the public online, such number shall be promptly redacted by the county clerk” (Public Officers Law §96-a).

            Because the amendment provides a remedy for those documents that contain social security numbers that are made available online, it is our opinion that the law was written based on the assumption that such records would continue to be made available in their entirety, in paper and electronically.

            We are mindful that there is a general reluctance to make land records available in bulk, in an electronic format, because they contain home addresses and social security numbers of named individuals.  However, we do not believe that, at this time, there is a basis in the law for distinguishing between access to the paper records on file in an office, which are public in their entirety, and the same records maintained in electronic format.

II.  “Actual Costs” and Redacting Electronic Records

            Initially, the County indicated that it had “undertaken discussion with our vendor to effectuate a documents scrubbing process by which social security numbers may be redacted before we release voluminous amount of documents by way of microfilm or other means.”  In response to your appeal, and an assertion that you would not reimburse the County for such expense, the County replied that the County “does not have the technological capacity within the Office, to ‘scrub’ its database to redact all the social security numbers and would need to enlist the assistance of its outside vendor to perform such work”.  The County then declined to pursue such an arrangement, in light of your position.

            We offer the following comments as the basis for our opinion that when it is more efficient to make redactions electronically, and when redacting takes more than two hours or requires the agency to hire an outside professional, the agency may pass on actual costs associated with such efforts.  This analysis pertains only to records that are not related to the right, title or interest in real property; as discussed above, in part I of this opinion.

            First, in August of 2008, the Freedom of Information Law was amended to include new parameters for calculating the “actual costs of reproducing” records “other” than photocopies of paper less than 9 x 14 inches.  A new §87(1)(c) provides as follows:

“In determining the actual cost of reproducing a record, an agency may include only:

i.  an amount equal to the hourly salary attributed to the lowest paid agency employee who has the necessary skill required to prepare a copy of the requested record;
ii.  the actual cost of the storage devices or media provided to the person making the request in complying with such request;
iii.  the actual cost to the agency of engaging an outside professional service to prepare a copy of a record, but only when an agency’s information technology equipment is inadequate to prepare a copy, if such service is used to prepare the copy; and
iv.  preparing a copy shall not include search time or administrative costs, and no fee shall be charged unless at least two hours of agency employee time is needed to prepare a copy of the record requested.  A person requesting a record shall be informed of the estimated cost of preparing a copy of the record if more than two hours of an agency employee’s time is needed, or if an outside professional service would be retained to prepare a copy of the record.

            In sum, when it takes an agency employee more than 2 hours to prepare an electronic record, the agency is permitted to pass on either the hourly wage of the lowest paid employee capable of preparing the record, multiplied by the number of hours the employee spent preparing the record, and the cost of the storage device or media provided to the applicant, or, when the agency does not have adequate information technology equipment to prepare a copy, the actual cost of engaging an outside professional service.  In the event that more than 2 hours of employee time is necessary to prepare a record, or if it is necessary to retain an outside professional, the agency is required to inform the applicant prior to incurring the cost of preparing the record.

            Simultaneously with those changes, §89(3) of the law was amended, and now includes the following language, in pertinent part:

“An agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside professional service to provide copying, programming or other services required to provide the copy, the costs of which the agency may recover pursuant to paragraph (c) of subdivision one of section eighty-seven of this article. . . . 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.  When doing so requires less employee time than engaging in manual retrieval or redactions from non-electronic records, the agency shall be required to retrieve or extract such record or data electronically.  Any programming necessary to retrieve a record maintained in a computer storage system and to transfer that record to the medium requested by a person or to allow the transferred record to be read or printed shall not be deemed to be the preparation or creation of a new record.”

            It is our understanding that these provisions, read in conjunction with the descriptions of fees for actual costs noted above, permit an agency to charge for segregating, extracting and retrieving data in response to a request, permit an agency to refuse to provide records that would require an unreasonable effort to prepare a record, and, most importantly here, permit an agency to pass on costs for redacting records, when utilizing computer technology, and when more than two hours is required to do so.

            Key to our analysis is the agency’s use of computer technology to redact information that may be withheld.  Because the request in this case pertains to a large volume of records already maintained electronically, it would not be efficient to employ a person to perform manual redactions.  Given the time-saving capabilities of software that could search for, locate and redact social security numbers, and based on the amendments outlined above, in our opinion, the law permits an agency to recover costs to redact records in this manner. 

            Once the requested records are redacted and exist in an electronic format, we make the following recommendations: (1) that the agency maintain a copy of the redacted records so that subsequent applicants do not have to pay costs associated with redacting, and (2) that the agency prospectively collect records in a manner that avoids the necessity for redacting.

            On behalf of the Committee on Open Government we hope this is helpful to you.

                                                                                                Sincerely,

 

                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director

CSJ:jm

cc: Hon. Maureen O’Connell, County Clerk
Paul L. Herzfeld, Deputy County Attorney