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January 24, 1994

 

 

Mr. John Reinan
Democrat and Chronicle
55 Exchange Boulevard
Rochester, NY 14614-2001

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,
unless otherwise indicated.

Dear Mr. Reinan:

I have received your letter of December 15 in which you sought
an advisory opinion concerning a denial of a request for records by
the Department of Motor Vehicles.

In a request made on November 18 to George Christian, the
Department's records access officer, you requested records of "all
licensed drivers" at certain addresses in Rochester. You added
that Peter Poleto of the Department's Office of Data Processing
informed you, in your words, that "the department does have a
computer program that provides the information [you] seek, and that
no custom programming would therefore be required". Nevertheless,
Mr. Christian denied the request, stating that:

"The Department's general policy is to decline
to provide lists of motorists or registrants
whether keyed to addresses, or birthdates, or
sex, etc., because it would be an unwarranted
invasion of personal privacy (Public Officers
Law 87(2)(b)).

"Pursuant to Vehicle and Traffic Law Section
202, the Department does fill license and
registrant information requests mailed here or
dialed in directly by subscribers equipped
with computers. However, it limits requests
to those keyed to an individual's name or a
vehicle description, for which computer
programs exist on-line to retrieve information
from the electronic files. Neither the
license nor registration file data are indexed
by geography. Programming outside the normal
course of business would have to be done to
process your request. Public Officer's Law
Section 89(3) relieves an agency from creating
a record not possessed or maintained by it,
with exceptions not relevant here. Creation
and collection of one or more records indexed
by geography is not required."

You referred specifically to the portion of the response concerning
requests "for which computer programs exist on-line" and contended
that "[t]his seems to be tightly phrased to rule out using a
program that may exist within their department, but which is used
so sparingly that it is not on-line."

In this regard, I offer the following comments.

First, 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).

Second, due to the inconsistency between your description of
Mr. Poleto's remarks and part of the rationale for the denial
offered by Mr. Christian, I contacted Mr. Christian to seek
clarification of the matter. He, in turn and in good faith, raised
the issue again with staff in the Department's Office of Data
Processing. In brief, based on our discussion, it is my
understanding that computer programs have been developed which,
although rarely used, may, in combination with another identifier,
such as a street address, be used to extract license information.
He added that there may be a variety of permutations of an address
based upon spelling. For instance, One West Fourth Street might
appear in that manner, or perhaps as "1 West Fourth Street", "1 W.
4th St.", etc. Usage of any one of those permutations would
extract only the data exactly partinent to that version.

An issue in my opinion is whether extraction of the data
involves programming that need not be accomplished to comply with
law. Before dealing with that matter, a basic issue involves what
constitutes "programming". Often, information stored
electronically can be extracted by means of a few keystrokes on a
keyboard. While some have contended that those kinds of minimal
steps involve programming or reprogramming, I believe that so
narrow a construction would tend to defeat the purposes of the
Freedom of Information Law, particularly as information is
increasingly being stored electronically. Based upon my
understanding of the actions necessary to extract the data in
question, those items could be retrieved with reasonable effort and
would not involve programming or creating records in a manner
beyond the scope of the requirements of the Freedom of Information
Law.

Third, I believe that data equivalent to that which would be
accessible via more typically used identifiers should be made
available to you. Although the Freedom of Information Law
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 routine individual searches, I do
not believe that disclosure of the information sought would result
in an unwarranted invasion of personal privacy.

Lastly, I point out that §202(2) of the Vehicle and Traffic
Law contains provisions pertaining to the search for and disclosure
of records. Paragraph (e) of that provision states in part that:

"For the 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."

In the case of your request, an address would be entered in order
to extract data. From my perspective, based on the provision
quoted above, if an address is not an "acceptable" identifier
pursuant to the Department's regulations, the request could
properly be rejected. However, having confirmed with Department
staff that no such regulations have been promulgated, I do not
believe that there is any legal basis for withholding the
information sought.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: George Christian