April 22, 1997



Mr. Steve Orr
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 information presented in your correspondence.

Dear Mr. Orr:

I have received your letter of March 31, as well as the correspondence attached to it. You have sought an advisory opinion concerning a request made under the Freedom of Information Law for data maintained by the Department of Motor Vehicles.

According to the materials, a request was initially made on February 11 for a portion of the Department's Traffic Safety Law Enforcement and Disposition (TSLED) database for certain counties in your coverage area. The Department disclosed the data in great measure, but denied access to information pertaining to judges and justices assigned to cases referenced in the database. In an ensuing letter of March 11, you asserted that your earlier request included code numbers that could be used to identify judges or justices to whom cases in the database were assigned. In addition, you requested "names and/or unique identifying numbers for motorists" included in the database that had also been withheld. You indicated that you were informed by the Department that it does not release that personally identifiable data "as a matter of policy." My understanding is that the data in question involves cases in which people were charged with violations of law. You expressed a belief in that letter that the Department cannot validly withhold the names of all such motorists, but only those whose cases were dismissed or who were acquitted.

In this regard, I offer the following comments.

First, as you are aware, the Freedom of Information Law pertains to existing records. Section 89(3) of the Law states in part that an agency need not create a record in response to a request. It is also important to note, however, that §86(4) of the Law defines the term "record" 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 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 in the early days of the Freedom of Information Law 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 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 be the equivalent of creating a new record. As stated earlier, since §89(3) does not require an agency to create a record, an agency is not 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 electronic information can be extracted or generated with reasonable effort, I believe that an agency would be required to do so based upon the thrust of judicial interpretations of the Freedom of Information Law and the expressed intent of the Law indicating that agencies are required to make records available "wherever and whenever feasible" (see Freedom of Information Law, §84).

Second, 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, irrespective of the Department's policy, the kinds of date in which you are interested, assuming that they can be generated in accordance with the preceding commentary, must be disclosed.

As the request relates to the identification of judges and justices, the only issue in my view involves §87(2)(b), which permits an agency to withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy.

Based on the judicial interpretation of the Freedom of Information Law, it is clear that public officers and employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that those individuals are required to be more accountable than others. The courts have found that, as a general rule, records that are relevant to the performance of the official duties of a public officer or employee are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)]. Conversely, to the extent that items relating to public officers or employees are irrelevant to the performance of their official duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22, 1977, dealing with membership in a union; Minerva v. Village of Valley Stream, Sup. Ct., Nassau Cty., May 20, 1981, involving the back of a check payable to a municipal attorney that could indicate how that person spends his/her money; Selig v. Sielaff, 200 AD 2d 298 (1994), concerning disclosure of social security numbers].

In my opinion, it is clear that disclosure of the data as it relates to judges and justices would constitute a permissible invasion of privacy, for the data clearly relates to the performance of their official duties. Moreover, determinations rendered by judges typically occur in proceedings open to the public, and court records, although not subject to the Freedom of Information Law, that include the kind of information that you are seeking would generally be available from the courts under other provisions of law (see e.g., Judiciary Law, §255; Uniform Justice Court Act, §2019-a).

As your request pertains to motorists, I believe that the issue involves the protection of privacy by means of the application of statutes requiring confidentiality. When such a statute is applicable, records would be exempted from disclosure pursuant to §87(2)(a) of the Freedom of Information Law. As you may be aware, there is a distinction in terms of rights of access between those situations in which a person has been found to have engaged in a violation of law, and those in which charges against an individual have been dismissed in his or her favor. In the latter case, records relating to an event that did not result in a conviction ordinarily become sealed pursuant to §160.50 and perhaps other provisions of the Criminal Procedure Law. However, if it is determined that a person has engaged in a violation, i.e., for speeding, the records would be available from the courts in which the proceedings occurred. Further, the Court of Appeals, the State's highest court, determined in 1984 that traffic tickets issued and lists of violations of the Vehicle and Traffic Law compiled by the State Police during a certain period in a county must be disclosed, unless charges were dismissed and the records sealed pursuant to provisions of the Criminal Procedure Law [see Johnson Newspaper Corp. v. Stainkamp, 61 NY2d 958).

It is my understanding that the data sought as it relates to motorists is essentially the same in substance as that determined by the Court of Appeals to be available to the public. In my view, assuming that it can generate the data, equivalent data maintained by the Department of Motor Vehicles should also be disclosed by the Department.

I note further that §508(3) of the Vehicle and Traffic Law states that the Commissioner of the Department "shall keep a record of every license issued which records shall be open to public inspection..." I believe that the license record includes an individual's driving history for a period of time, including convictions for violations of the Vehicle and Traffic Law. If that is so, again, the information sought would be analogous to data accessible from the Department in a different form.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Ray Hull
George Christian