November 20, 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.
We are in receipt of your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the Genesee Valley Central School District. In an effort to provide guidance with respect to access to electronic budget data, we offer the following.
Your initial request to the District was for the “school budget breakdown of costs per department for 2009-2010”. Later, you made a second request for budget information proposed by elementary, middle and high schools.
In response, the District provided Excel documents reflecting total budget amounts, later a “budget workbook”, “organized by number code and therefore some departments”, and finally “actual requisitions.” The District indicated that expenditures are not captured by department. “For instance,” the business official wrote in part, “our regular education budget lists salaries by PK-6 and 7-12 as required by NYS Education Department budget reporting. We do not break down Materials and Supplies, Contractual, etc. by schools…. We do not break down transportation budgets between the 3 schools – it is listed district wide as we do a single run for all levels.”
On appeal, the District indicated that the budget is not broken down by elementary, middle and high schools because “Genesee Valley Central School is a Pre-k – 12 School all in one building and operates on a budget that is not separated into three schools” and that to do so would require changing the budget development process. In this regard, we offer the following.
As you know, the Freedom of Information Law pertains to existing records. While §89(3) of that statute provides in part that an agency is not required to create a record in response to a request, §86(4) of the Freedom of Information 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 in our opinion constitute a "record" subject to rights of access. Further, the definition of "record" includes specific reference to computer tapes and discs, and it was held almost thirty 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)].
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, we believe that it is required to do so.
In 2008, §89(3)(a) was amended to codify case law with respect to this issue, and now requires as follows:
“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.” §89(3)(a).
As we interpret the foregoing, insofar as the District 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. On the other hand, if the District does not have the ability, with reasonable effort, to extract or organize data in the manner that you requested, in our opinion, it is not required to do so.
On behalf of the Committee on Open Government, we hope that this is helpful to you.
Camille S. Jobin-Davis
cc: Brett T. Gallmann