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December 22, 1993

 

 

Ms. Christine M. Pezzulo
Deputy County Attorney
Department of Law
John H. Mulroy Civic Center
421 Montgomery Street, 10th Floor
Syracuse, NY 13202

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 Ms. Pezzulo:

I have received your letter of November 10 and the materials
attached to it. Please accept my apologies for the delay in
response.

You have sought an advisory opinion concerning Onondaga
County's obligation to comply with a request for "a computer tape
copy and record layout of all names and addresses of pistol
licensees in your county". In conjunction with the foregoing, you
were informed that "the information requested is on the arrest data
base and there is no current mechanism for extracting that
information", and that the County's data proceeding department has
indicated that "a new program must be written to extract this
information".

In this regard, it is noted initially that 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 §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 the 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)].

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 date 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 indicated earlier,
since §89(3) states that an agency is not required to create a
record, it has been held that an agency is not required to
reprogram or develop new programs to extract information that would
otherwise be available [see Guerrier v. Hernandez-Cuebas, 165 AD 2d
218 (1991).

In Guerrier, as in the situation that you described, the
agency maintained the requested data in its computerized records.
However, the agency did not have a computer program that could have
been used to compile the information sought, and it was held that
"FOIL does not require respondent to do so for the purpose of
complying with petitioner's request" (id., 220).

In sum, based upon the preceding analysis and the judicial
interpretation of the Freedom of Information Law, I do not believe
that the County is obliged to engage in reprogramming or the
development of a new program in order to generate the requested
data.

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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