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August 16, 1993

 

 

Gary L. Rhodes, Supervisor
Town of Henderson
RR1, Box 668
Henderson, NY 13650

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 Supervisor Rhodes:

I have received your letter in which you raised questions
concerning a request made under the Freedom of Information Law.

The request pertains to "the town's data base concerning its
accounting package", including "data on appropriations, revenues
and general ledgers for the General Fund and Highway Fund
respectively." The applicant provided a floppy disk in order that
the data could be transferred onto his disk. In conjunction with
the foregoing, you asked that I comment on the following questions:

"1. What is the town's obligation to fill
this request? How should it be answered?

2. This request is more than a normal
request. How should we charge for this
service as it will involve computer time and
extra effort by the town's accountant?

3. Could you send any case law or opinions
concerning this request, or requests of a
similar nature?

4. If we do have to comply with this request,
we will not allow a foreign disk into our
system, we would provide a backup copy for the
request.

5. What are the time constraints concerning a
request of this nature? We have advised Mr.
Schneider that we will get the information as
soon as we are able to."

In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to existing
records and §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 §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 §89(3) does not require an agency to create a
record, I do not believe that an agency would be required to
reprogram or develop new programs to retrieve information that
would otherwise be available [see Guerrier v. Hernandez-Cuebas, 165
AD 2d 218 (1991)].

A recent decision may be relevant to the situation at issue.
In Brownstone Publishers Inc. v. New York City Department of
Buildings, the question involved an agency's obligation to transfer
electronic information from one electronic storage medium to
another when it had the technical capacity to do so and when the
applicant was willing to pay the actual cost of the transfer. As
stated by the Appellate Division, First Department:

"The files are maintained in a computer format
that Brownstone can employ directly into its
system, which can be reproduced on computer
tapes at minimal cost in a few hours time-a
cost Brownstone agreed to assume (see, POL
[section] 87[1] [b] [iii]). The DOB,
apparently intending to discourage this and
similar requests, agreed to provide the
information only in hard copy, i.e., printed
out on over a million sheets of paper, at a
cost of $10,000 for the paper alone, which
would take five or six weeks to complete.
Brownstone would then have to reconvert the
data into computer-usable form at a cost of
hundreds of thousands of dollars.

"Public Officers Law [section] 87(2) provides
that, 'Each agency shall...make available for
public inspection and copying all records...'
Section 86(4) includes in its definition of
'record', computer tapes or discs. The policy
underlying the FOIL is 'to insure maximum
public access to government records' (Matter
of Scott, Sardano & Pomerantz v. Records
Access Officer, 65 N.Y.2d 294, 296-297, 491
N.Y.S.2d 289, 480 N.E.2d 1071). Under the
circumstances presented herein, it is clear
that both the statute and its underlying
policy require that the DOB comply with
Brownstone's reasonable request to have the
information, presently maintained in computer
language, transferred onto computer tapes"
[166 Ad 2d, 294, 295 (1990)].

Further, in a more recent decision that cited Brownstone, it was
held that: "[a]n agency which maintains in a computer format
information sought by a F.O.I.L. request may be compelled to comply
with the request to transfer information to computer disks or tape"
(Samuel v. Mace, Supreme Court, Monroe County, December 11, 1992).

In sum, assuming that the data can be transferred or that a
conversion of format can be accomplished, and that the data sought
is available under the Freedom of Information Law, I believe that
the Town would be obliged to do so.

Third, with respect to fees, §87(1)(b)(iii) of the Freedom of
Information Law 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 a related area, if you believe that the introduction of a
"foreign disk" might result in contamination, in my opinion, the
Town need not use that disk, but rather its own.

Fourth, 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 (i) of the Law. From my
perspective, the data in question are accessible, for none of the
grounds for denial would apply. Further, it appears that the data
in question is the same in substance as that required to be
maintained and made available pursuant to §29(4) of the Town Law.
That provision states that the supervisor:

"Shall keep an accurate and complete account
of the receipt and disbursement of all moneys
which shall come into his hands by virtue of
his office, in books of account in the form
prescribed by the state department of audit
and control for all expenditures under the
highway law and in books of account provided
by the town for all other expenditures. Such
books of account shall be public records, open
and available for inspection at all reasonable
hours of the day, and, upon the expiration of
his term, shall be filed in the office of the
town clerk."

In addition, subdivision (1) of §119 of the Town Law states in part
that:

"When a claim has been audited by the town
board of the town clerk shall file the same in
numerical order as a public record in his
office and prepare an abstract of the audited
claims specifying the number of the claim, the
name of the claimant, the amount allowed and
the fund and appropriation account chargeable
therewith and such other information as may be
deemed necessary and essential, directed to
the supervisor of the town, authorizing and
directing him to pay to the claimant the
amount allowed upon his claim."

That provision also states that "The claims shall be available for
public inspection at all times during office hours."

Lastly, the Freedom of Information Law provides direction
concerning the time and manner in which agencies must respond to
requests. Specifically, §89(3) of the Freedom of Information Law
states in part that:

"Each entity subject to the provisions of this
article, within five business days of the
receipt of a written request for a record
reasonably described, shall make such record
available to the person requesting it, deny
such request in writing or furnish a written
acknowledgement of the receipt of such request
and a statement of the approximate date when
such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, or if an
agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my
opinion, be considered to have been constructively denied. In such
a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. That
provision states in relevant part that:

"any person denied access to a record may
within thirty days appeal in writing such
denial to the head, chief executive, or
governing body, who shall within ten business
days of the receipt of such appeal fully
explain in writing to the person requesting
the record the reasons for further denial, or
provide access to the record sought."

In addition, it has been held that when an appeal is made but
a determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her
administrative remedies and may initiate a challenge to a
constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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