Mr. Bernard T. Callan
P.O. Box 222-P
144 Fourth Avenue
Bay Shore, N.Y. 11706
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.
Dear Mr. Callan:
I have received your letter of March 2 and related correspondence.
According to the materials, in response to a request by the Brentwood Union Free School District for a report of all certiorari writs, the District was informed that the Town's computer system had been reformatted, that the writs are not filed as they once had been and that, therefore, the record sought "does not exist and must be created specifically for [the District's] needs." As such, the District was informed that a "pre-paid fee of $350.00 will be charged for the creation of computer program with an additional fee of $50.00 for each hour of computer time needed to produce the program."
You have sought an advisory opinion concerning the propriety of the response. In this regard, I offer the following comments.
First, as you are aware, the Freedom of Information Law pertains to existing records. Section 89(3) of the Law states in part that an agency need not create a record in response to a request. It is emphasized, however, that section 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 my opinion 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 ten 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)].
Second, when information is maintained electronically, in a computer, for example, 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 in my view 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 disk. On the other hand, if information sought can be retrieved from a computer or other storage medium only by means of new programming or the alteration of existing programs, those steps would, in my opinion, be the equivalent of creating a new record. As stated earlier, since section 89(3) does not require an agency to create a record, I do not believe that an agency would be required by the Freedom of Information to reprogram or develop new programs to retrieve information that would otherwise be available [see Guerrier v. Hernandez-Cuebas, 165 AD 2d 218 (1991)].
If an agency chooses to engage in the development of new or altered programs, I believe that it would be acting beyond the requirements of the Freedom of Information Law. As such, I believe that it could charge for such a service based upon considerations separate from the provisions concerning the assessment of fees described in §87(1)(b)(iii) of the Freedom of Information Law.
That provision pertains to existing records and requires agencies to establish rules and regulations pertaining to:
"the fees for copies of records which shall not exceed twenty-five cents per photocopy not in excess of nine by fourteen inches, or the actual cost of reproducing any other record, except when a different fee is otherwise prescribed by statute."
Consequently, once a program has been created or altered, and information can be retrieved on the basis of that program, I believe that an agency may charge only on the basis of the actual cost of reproduction, i.e., computer time, plus the cost of an information storage medium, such as paper, a computer tape or a computer disk. In my view, if the actual cost of computer time is less than $50.00 per hour, the fee of $50.00 would be inconsistent with the Freedom of Information Law. Again, the fee in that circumstance in my opinion could appropriately be based on the actual cost of generating the data.
I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman
cc: Frank Diamante, Assessor