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June 14, 1995

 

Mr. Marc A. Madia
Assistant Counsel
NYS Office of Mental Health
44 Holland Avenue
Albany, NY 12229

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. Madia:

I appreciate receiving a copy of your response to an appeal made under the Freedom of Information Law by William F. Hammond, Jr. His appeal appears to have been based on a decision of the Office of Mental Health to provide access to information in hard copy rather than in electronic form.

In reaching that determination wrote you that:

"...by furnishing a written, or 'hard,' copy of the information contained on the computer disk, OMH has provided you with full and reasonable access to that information. Thus, the circumstances are clearly distinguishable from those in Brownstone Publishers, Inc. v. New York City Department of Buildings, 146 Misc.2nd 376 (1990), which is the only time a New York court has ruled that records maintained on a computer disc must be made available in a computer tape, rather than hard copy, format. In Brownstone, the court concluded that providing the requesting party information, based on the fact that the hard copy was going to be over one million pages long, cost the requesting party some $10,000 in paper and take some six weeks to print. Such is obviously not the case here."

I respectively disagree with your analysis. In my view, the Freedom of Information Law, in terms of its intent and its judicial interpretation, should be construed to require agencies to produce accessible information in the format of the applicant's choice, so long as the agency is able to do so and the applicant pays the requisite fee. I agree with your contention that the court in the case that you cited considered the facts in terms of the reasonableness (or absence thereof) of the agency's position. However, from my perspective, the court primarily focused on electronic media as "records" and the agency's obligation to transfer the data sought from one electronic medium to another that was usable to the applicant. As stated in Brownstone Publishers, Inc. v. New York City Department of Buildings:

"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 short, assuming that the conversion of format can be accomplished, that the data sought is available under the Freedom of Information Law, and that the data can be transferred from the format in which it is maintained to a format in which an applicant requests it, I believe that an agency would be obliged to do so. If you would like to discuss the matter, please feel free to call me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: William F. Hammond, Jr.