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May 31, 1995



Mr. Wallace S. Nolen
Elmira Correctional Facility
P.O. Box 500
Elmira, NY 14902-0500

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear Mr. Nolen:

I have received your letter of May 1 in which you raised three questions concerning the Freedom of Information Law.

The first concerns rights of access to "the records of the civil department of a sheriff, to wit, property executions; income executions; payment information of receipts for fees,
disbursements, levy monies, etc...as authorized...under Article 52 of the N.Y.S.C.P.L.R." Article 52 of the CPLR pertains to the enforcement of money judgments. 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 kinds of records that you described should be disclosed, unless they are sought for commercial or fund-raising purposes. In Matter of Nicholas [458 NYS 2d 858 (1983)], a request was made to a sheriff for records of income executions for a
certain period, and it was assumed that the request was made for a commercial purpose. That being so, the denial of the request was upheld in conjunction with §89(2)(b) of the Freedom of Information Law. As you may be aware, that provision includes examples of unwarranted invasions of personal privacy, one of which pertains to the sale or release of a list of names and addresses if the list would be used for commercial or fund-raising purposes
[§89(2)(b)(iii)]. Based on the foregoing, I believe that an agency could condition disclosure upon the receipt of a certification or affidavit by an applicant indicating that the records would not be
used for commercial or fund-raising purposes.

In the second area of inquiry, you wrote as follows:

"...assuming some and/or all of such information is available under F.O.I.L. could
such sheriff be required to supply such information in electronic format and if some
of the information must be deleted from disclosure, must an agency insist on paper
format which may result in paper exceeding 10,000 sheets, but conversely, if the agency
could write a simple computer program in say 1 hour and 'run in' in 5 minutes to 'delete'
exempt materials versus over 500 man hours of personnel to 'delete' exempt material, which
method is mandated."

In this regard, 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 some fifteen 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 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)].

If the information that you seek cannot be retrieved or extracted without significant reprogramming, an agency would not, in my opinion, be obliged to develop new programs or modify its existing programs in an effort to generate the data of your interest.

However, 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. In my view, if electronic information can be extracted or generated with reasonable effort, if that effort involves less time and cost to the agency than engaging in manual
deletions, it would seem that an agency should follow the more reasonable and less costly and labor intensive course of action.
Whether a court in such circumstances would require an agency to follow that course of action is conjectural.

Lastly, you wrote that "information contained on income executions and property executions become part of a court/county clerk file when completion is made (when the sheriff makes his
'return of service'" and asked whether "the release of the information change[s] if the judgment/enforcement of the particular papers is not fully completed/paid in full." I am not sufficiently familiar with the process to offer an unequivocal response.
However, as indicated earlier, the Freedom of Information Law is based on a presumption of access. Further, in general, I believe that the kinds of records at issue became public when they come into the possession of a court clerk or a county clerk.

I hope that I have been of some assistance.


Robert J. Freeman
Executive Director