November 7, 2014
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.
This is in response to your request for an advisory opinion regarding application of the FOIL to records requested from the City of Auburn, and our subsequent telephone conversation regarding the City’s responsibility to respond to requests with reasonable effort.
In this regard, §89(3)(a) of FOIL requires that an applicant must “reasonably describe” the records sought. In considering that standard, the Court of Appeals, the state’s highest court, has indicated that whether or the extent to which that condition is met may be dependent on the nature of an agency’s filing or recordkeeping system (see Konigsberg v. Coughlin, 68 NY2d 245 ). If, for example, records of complaints made pursuant to a particular ordinance are kept or filed by the ordinance number, and the request is made by the number of the ordinance, it would likely be easy to locate the records at issue. If, however, records of complaints are kept chronologically, not numerically, searching for related records might involve the equivalent of searching for the needle in the haystack. According to the Court, if that is so, the agency is not required to search the haystack, even though it is known that the needles are there, somewhere.
Similarly, if electronic information can be extracted or generated with reasonable effort, an agency is required to do so, based on an amendment to §89(3)(a) of FOIL which was adopted in 2008 and requires as follows:
“When an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so.”
As we interpret the foregoing, insofar as the City has the ability to extract or generate the requested records with reasonable effort, it is obliged to do so to comply with the FOIL. As you and I discussed, search mechanisms in electronic information systems often permit the retrieval of records based on a variety of possibilities, i.e., the use of an ordinance section number, or a particular key phrase. If, for example, a search can be made by means of the word “nuisance” or “disorderly”, and a computer can link to related electronic records, and perhaps provide disposition information, the agency would have the ability to locate records with reasonable effort. In that event, in our view, the agency would be required to do so.
Although we have no experience with the manner in which City’s records are maintained or indexed, we note that statistical information is available from the Auburn Police Department’s website, including monthly and yearly breakdowns of the type of calls and incidents reported and investigated. While this does not necessarily mean that reports related thereto can be located with reasonable effort, it may serve as a starting point. On the other hand, if the City does not have the ability to locate the requested records with reasonable effort, in our opinion, it is not required to do so.
Locating the records is essentially the first part of the agency’s responsibility pursuant to FOIL. As you know, the FOIL 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 (l) of the Law.
With respect to the individual types of records that have been requested, rather than setting forth lengthy analyses herein, please consider the advice offered in the enclosed advisory opinions (domestic incidents - FOIL-AO-12299, FOIL-AO-14245; E911 calls - FOIL-AO-18034; law enforcement manual – FOIL-AO-12243; incident reports – FOIL-AO-17079). We hope that they are helpful.
Camille S. Jobin-Davis