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January 13, 1994

 

 

Ms. Krista Bradford
405 East 63rd Street, 10J
New York, NY 10021

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. Bradford:

I have received your letter of December 26 and related
materials. You have sought an advisory opinion concerning a
request for records of the Department of Motor Vehicles.

In a letter of November 3 citing the Freedom of Information
Law, you wrote as follows:

"I hereby request a data copy of the following
Department of Motor Vehicles computer files:
'Registration Records', 'VIN (vehicle
identification number) Records' and 'License
Records' including Accident Records,
Conviction Records, Scofflaw Records,
Compliance Records and Other Sanctions. In
addition, I am requesting the field layouts of
the files and the Data Dictionary. Also, upon
request, I would like to receive copies of
these DMV computer files on an annual basis in
the ensuing years starting upon completion of
year in which the database copy is received."

In addition, you sought the data in a particular format and
specified that you were "not requesting that individual files be
located or that any of these files be searched"; rather, you wrote
that you were "requesting a copy of the entire 'database'" and
contended that provisions of §202 of the Vehicle and Traffic Law
(VTL) pertaining to search fees do not apply.

The Department, however, denied the request on the ground that
"access is controlled by VTL Section 202" and because disclosure
would constitute an unwarranted invasion of personal privacy under
§87(2)(b) of the Freedom of Information Law.

Your request involves several components and a variety of
issues. I will attempt to address them in the following
commentary.

First, as you are aware, the Freedom of Information Law
pertains to existing records, §89(3) of the Law states in part that
an agency need not create a record in response to a request. It is
also noted that §86(4) of that statute 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 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 it has been
advised that if the information sought is available by 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 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, 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). I believe that several of the categories of the information
sought, i.e., accident, conviction, scofflaw and compliance
records, can currently be retrieved only through the use of and in
combination with an identifier, such as a name or identification
number. If that is so, the Department would have no way of
extracting those kinds of data without engaging in significant
programming. In that event, the Freedom of Information Law would
not in my view require the Department to engage in programming, and
it appears that some aspects of your request could properly be
rejected on that basis.

Second, it is emphasized and recognized that the duties of
this office involve providing advice regarding the Freedom of
Information Law, not the VTL. However, in order to provide
appropriate guidance concerning the applicability of the Freedom of
Information Law, I believe that the VTL, under the circumstances,
must also be considered. In this regard, the Freedom of
Information Law pertains to the disclosure of government records
generally. When a statute other than the Freedom of Information
Law deals with records particularly, under the rules of statutory
construction, the specific statute would prevail over the general.
With regard to at least one aspect of your request, I believe that
the VTL would prevail over the Freedom of Information Law.

In the case of registration lists, §202(4)(a) of the VTL
states in relevant part that:

"The commissioner may, in his discretion,
contract with the highest responsible bidder
to furnish the registration information
specified in this section from the records of
all vehicle registrations from any
registration period, or number of periods not
exceeding five years in the aggregate, with
respect to a given territory."

From my perspective, §202(4)(a) represents the exclusive statutory
method of seeking to acquire a vehicle registration list, and under
that provision, such a list must be disclosed only to "the highest
responsible bidder."

Third, with respect to other kinds of lists, i.e., lists of
licensed drivers, that are maintained electronically and which
could be reproduced, the questions in my view are whether a request
for the lists would involve a "search", and, therefore, whether the
VTL or the Freedom of Information Law would be the governing
statute.

Section 202(2) of the VTL states in relevant part that:

"(b) The fee for a search which is made by
direct entry by a requester who has been
approved for such entry by the commissioner
shall be four dollars.

(c) The fee for a search which is made by
means of an electronic medium which has been
prepared by a requester who has been approved
for such service by the commissioner and which
is processed by the department shall be four
dollars.

(d) The commissioner may condition approval
for direct entry of a request or use of an
electronic medium by a requester upon the
establishment and maintenance of an account
with the department with a minimum balance
established by the commissioner from which
fees chargeable to the request shall be
deducted. In addition, the commissioner shall
prescribe the specifications and procedures
for use of electronic media and may establish
a minimum and/or maximum number of searches
which may be contained on any one such
electronic medium submission.

(e) For purposes of this section, a search
shall consist of a single entry of an
acceptable identifier for the purpose of
obtaining a specific category of information
relating to a person, vehicle or number plate.
The commissioner shall by regulation define
such categories and identifiers acceptable for
such categories. Except as provided in
subdivision three of this section, a search of
the record of the department shall include the
furnishing of the information disclosed by
such search, and with respect to searches made
manually be the department, shall include a
certification of such record."

As I understand the situation, your request does not involve "a
search which is made by direct entry by a requester who has been
approved for such entry." Further, by requesting a "list" or
perhaps a database in its entirety, you have not apparently
requested a search consisting of a "single entry of an acceptable
identifier for the purpose of obtaining a specific category of
information relating to a person, vehicle or number plate." If the
foregoing is accurate, your request for lists or databases would
not involve a "search", and if that is so, §202 of the VTL would
not likely be applicable. In short, it does not appear that the
drafters of §202 envisioned the kind of request that you have made.

If the Freedom of Information Law applies, I believe that data
equivalent to that which would be accessible via "searches" would
be available to you in the form of a list or database maintained
electronically by the Department. Although that statute authorizes
an agency to withhold records when disclosure would constitute "an
unwarranted invasion of personal privacy", if the records sought
contain the same kind of personal information that would be
available by means of individual searches, I do not believe that
disclosure of that data in the aggregate would, in this instance,
result in an unwarranted invasion of personal privacy.

Ordinarily, when records are accessible under the Freedom of
Information Law, it has been held that they should be made equally
available to any person, regardless of one's status, interest or
the intended use of the records [see Burke v. Yudelson, 368 NYS 2d
779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. The Court of
Appeals, the State's highest court, has held that:

"FOIL does not require that the party
requesting records make any showing of need,
good faith or legitimate purpose; while its
purpose may be to shed light on government
decision-making, its ambit is not confined to
records actually used in the decision-making
process. (Matter of Westchester Rockland
Newspapers v. Kimball, 50 NY2d 575, 581.)
Full disclosure by public agencies is, under
FOIL, a public right and in the public
interest, irrespective of the status or need
of the person making the request" [Farbman v.
New York City Health and Hospitals
Corporation, 62 NY 2d 75, 80 (1984)].

The only exception to the principles described above involves
the protection of personal privacy. Section 89(2)(b) of the Law
provides a series of examples of unwarranted invasions of personal
privacy, one of which pertains to:

"sale or release of lists of names and
addresses if such lists would be used for
commercial or fund-raising purposes"
[§89(2)(b)(iii)].

The provision quoted above represents what might be viewed as an
internal conflict in the law. As indicated earlier, the status of
an applicant or the purposes for which a request is made are
irrelevant to rights of access, and an agency cannot routinely
require an applicant to describe the intended use of records.
However, due to the language of §89(2)(b)(iii), rights of access to
a list of names and addresses, or equivalent records, may be
contingent upon the purpose for which a request is made [see Scott,
Sardano & Pomeranz v. Records Access Officer of Syracuse, 65 NY 2d
294, 491 NYS 2d 289 (1985); Goodstein v. Shaw, 463 NYS 2d 162
(1983)].

In a case involving a list of names and addresses in which the
agency inquired as to the purpose for which the list was requested,
it was found that an agency could make such an inquiry.
Specifically, in Golbert v. Suffolk County Department of Consumer
Affairs (Supreme Court, Suffolk County, September 5, 1980), the
Court cited and apparently relied upon an opinion rendered by this
office in which it was advised that an agency may appropriately
require that an applicant for a list of names and addresses provide
an indication of the purpose for which a list is sought.

In the context of your request, you specified that the records
sought "will not be used or sold commercially", but "will be used
exclusively for the purpose of journalism." Based upon your
assertion and the preceding analysis, insofar as the Freedom of
Information Law applies, it is unlikely in my view that disclosure
would constitute an unwarranted invasion of personal privacy.

You also requested the "field layouts of the files and the
Data Dictionary". If that information was prepared by the
Department, I believe that it would consist of intra-agency
material that falls within the scope of §87(2)(g) of the Freedom of
Information Law. Although that provision may serve potentially as
a basis for denial, due to its structure, it often requires
disclosure. Section 87(2)(g) states that an agency may withhold
records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or
data;

ii. instructions to staff that affect the
public;

iii. final agency policy or determinations;
or

iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government..."

It is noted that the language quoted above contains what in effect
is a double negative. While inter-agency or intra-agency materials
may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently,
those portions of inter-agency or intra-agency materials that are
reflective of opinion, advice, recommendation and the like could in
my view be withheld. If I accurately understand the nature of the
records in question, they would consist of factual data available
under §87(2)(g)(i).

I point out that §87(2)(i) enables an agency to withhold
"computer access codes". While that provision does not appear to
be relevant here, I believe that it could be asserted to the extent
that disclosure of such codes would permit unauthorized access to
an agency's computers.

Lastly, you asked to receive copies of the files "on an annual
basis in the ensuing years." In my opinion, an agency is not
required to agree to such a request, even if the records are
unquestionably available under the Freedom of Information Law.
Technically, I do not believe that an agency can either grant or
deny access to records that do not yet exist. Consequently, an
ongoing prospective request or a request for records that may exist
at some point in the future is in my view beyond the requirements
of the Freedom of Information Law.

You also referred to a portion of §202 of the VTL that
pertains to the waiver of fees for searches or copies used "for a
public purpose" by a "public officer, board or body." You
suggested that the "fourth estate, comprised of journalists...could
be viewed as a 'public body'". While I agree that journalists
provide an essential service on behalf of the public, I believe
that the waiver provision is intended to apply only to governmental
officers and bodies.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: George Christian