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FOIL-AO-17916

December 2, 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 regarding your intention to request from the Suffolk County Police Department arrest information organized by zip code, “used to update research originally published in June 2005.”  In this regard, we offer the following comments.

            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)(a) 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.

            Further, 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 Department 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 behalf of the Committee on Open Government, we hope that this is helpful to you.

                                                                                                Sincerely,

 

                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director

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