December 29, 1998

 

Robert N. Brower, Chair
Local Government Advisory Committee
NYSGIS Coordinating Body
Cayuga County Planning Board
County Office Building
160 Genesee Street
Auburn, NY 13021

Dear Mr. Brower:

I have received your thoughtful letter of December 12. In your capacity as a member
of both the New York State GIS Coordinating Body and the GIS Local Government
Advisory Committee, you described a series of opportunities and emerging issues associated
with the development and proliferation of GIS technology. In an effort to facilitate the work
of the entities that you represent, you have sought guidance concerning the relationship
between GIS and the Freedom of Information Law.

In this regard, as you aware, legislation has been developed to overcome what some
have characterized as impediments to the development of GIS presented by the Freedom of
Information Law. If the legislation is enacted, I believe that the many of the problems
expressed by the GIS community will be overcome. Nevertheless, it is emphasized that
nothing in the legislation alters either rights of access to records or conversely, the ability to
withhold records. To provide perspective with respect to the operation of the Freedom of
Information Law, I offer the following comments.

First, as you are likely aware, the Freedom of Information Law pertains to agency
records, and §86(3) of that statute defines the term "agency" to mean:

"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation,
council, office or other governmental entity performing a
governmental or proprietary function for the state or any one
or more municipalities thereof, except the judiciary or the state
legislature."

Based on the foregoing, all entities of state and local government in New York constitute
"agencies" subject to the Freedom of Information Law.

Second, §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."

In view of 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
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 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. 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)].

In Brownstone Publishers Inc. v. New York City Department of Buildings, the
question involved an agency's obligation to transfer electronic information from one electronic
storage medium to another when it had the technical capacity to do so and when the applicant
was willing to pay the actual cost of the transfer. As stated by the Appellate Division, First
Department:

"The files are maintained in a computer format that
Brownstone can employ directly into its system, which can be
reproduced on computer tapes at minimal cost in a few hours
time-a cost Brownstone agreed to assume (see, POL [section]
87[1] [b] [iii]). The DOB, apparently intending to discourage
this and similar requests, agreed to provide the information
only in hard copy, i.e., printed out on over a million sheets of
paper, at a cost of $10,000 for the paper alone, which would
take five or six weeks to complete. Brownstone would then
have to reconvert the data into computer-usable form at a cost
of hundreds of thousands of dollars.

"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)].

Additionally, 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). That decision
involved a request for a school district wide mailing list in the form of computer generated
mailing labels. Since the district had the ability to generate the labels, the court ordered it to
do so.

Third, 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. I point out that there are numerous situations in which
some aspects of a record are public, while others fall within an exception. In those instances,
the agency is required to review the record in its entirety to identify those portions that may
be withheld and to disclose the remainder.

Next, it is emphasized that the courts have consistently interpreted the Freedom of
Information Law in a manner that fosters maximum access. As stated by the Court of
Appeals, the State's highest court, nearly two decades ago:

"To be sure, the balance is presumptively struck in favor of
disclosure, but in eight specific, narrowly constructed
instances where the governmental agency convincingly
demonstrates its need, disclosure will not be ordered (Public
Officers Law, section 87, subd 2). Thus, the agency does not
have carte blanche to withhold any information it pleases.
Rather, it is required to articulate particularized and specific
justification and, if necessary, submit the requested materials
to the courts for in camera inspection, to exempt its records
from disclosure (see Church of Scientology of N.Y. v. State
of New York, 46 NY 2d 906, 908). Only where the material
requested falls squarely within the ambit of one of these
statutory exemptions may disclosure be withheld" [Fink v.
Lefkowitz, 47 NY 2d 567, 571 (1979)]."

In another decision rendered by the Court of Appeals, it was held that:

"Exemptions are to be narrowly construed to provide
maximum access, and the agency seeking to prevent disclosure
carries the burden of demonstrating that the requested material
falls squarely within a FOIL exemption by articulating a
particularized and specific justification for denying access"
[Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see
also, Farbman & Sons v. New York City, 62 NY 2d 75, 80
(1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].

In the same decision, in a statement regarding the intent and utility of the Freedom of
Information Law, it was found that:

"The Freedom of Information Law expresses this State's
strong commitment to open government and public
accountability and imposes a broad standard of disclosure
upon the State and its agencies (see, Matter of Farbman &
Sons v New York City Health and Hosps. Corp., 62 NY 2d
75, 79). The statute, enacted in furtherance of the public's
vested and inherent 'right to know', affords all citizens the
means to obtain information concerning the day-to-day
functioning of State and local government thus providing the
electorate with sufficient information 'to make intelligent,
informed choices with respect to both the direction and scope
of governmental activities' and with an effective tool for
exposing waste, negligence and abuse on the part of
government officers" (id., 565-566).

In my view, several of the grounds for denial may be pertinent to agencies that
maintain a GIS.

Section 87(2)(b) permits an agency to withhold records to the extent that disclosure
would constitute "an unwarranted invasion of personal privacy." While that standard is
flexible and subject to interpretation, it is clear that personal information of an intimate nature
may be withheld. For instance, if a GIS includes medical or health related information, and
if disclosure would make an individual's identity known or easily traceable, that kind of data,
in my view, could justifiably be withheld. Similarly, in the context of public assistance or
other programs in which there is an income qualification, if the data is such that individuals
could be identified by income level, disclosure would likely result in an unwarranted invasion
of personal privacy. In those kinds of situations, "layers" of data might justifiably be withheld.

Section 87(2)(d) states that an agency may withhold records or portions thereof that:

"are trade secrets or are submitted to an agency by a
commercial enterprise or derived from information obtained
from a commercial enterprise and which if disclosed would
cause substantial injury to the competitive position of the
subject enterprise..."

In my view, the nature of record, the area of commerce in which a commercial entity
is involved and the presence of the conditions described above that must be found to
characterize records as trade secrets would be the factors used to determine the extent to
which disclosure would "cause substantial injury to the competitive position" of a commercial
enterprise. Therefore, the proper assertion of §87(2)(d) would be dependent upon the facts
and the effect of disclosure upon the competitive position of the entity to which the records
relate.

There are relatively few judicial decisions that have dealt with the application of
§87(2)(d). Typically, the proper assertion of §87(2)(d) has pertained to information, i.e.,
computer models, that involved a significant amount of time and money on the part of a
commercial entity to develop (see Belth v. Insurance Department, 406 NYS 2d 649, NYLJ,
January 9, 1978) or other records that have commercial value to competitors. The concept
and parameters of what might constitute a "trade secret" were discussed in Kewanee Oil Co.
v. Bicron Corp., which was decided by the United States Supreme Court in 1973 (416 (U.S.
470). Central to the issue was a definition of "trade secret" upon which reliance is often
based. Specifically, the Court cited the Restatement of Torts, section 757, comment b
(1939), which states that:

"[a] trade secret may consist of any formula, pattern, device or
compilation of information which is used in one's business, and
which gives him an opportunity to obtain an advantage over
competitors who do not know or use it. It may be a formula
for a chemical compound, a process of manufacturing, treating
or preserving materials, a pattern for a machine or other
device, or a list of customers" (id. at 474, 475; see also 104
NY Jur 2d 234).

A GIS might include data acquired from a private entity, such as a power company
or a telephone company, for example, that would fall within the "trade secret" exception.

That exception might also be significant in another context. If an agency has acquired
software, for example, from a private entity, and the software is licensed or copyrighted,
reproduction of the copyrighted material without the consent of the copyright holder would
likely result in copyright infringement. Further, if reproduction of the software would defeat
the purpose of the copyright and cause injury to enterprise that holds the copyright, it is likely
in my view that §87(2)(d) of the Freedom of Information Law could validly be asserted.

In terms of the ability of a citizen to use an access law to assert the right to reproduce
copyrighted material, the issue has been considered by the U.S. Department of Justice with
respect to copyrighted materials, and its analysis as it relates to the federal Freedom of
Information Act is, in my view, pertinent to the issue as it arises under the state Freedom of
Information Law.

The key aspect of the analysis involves the Justice Department's consideration of the
federal Act's exception (exemption 4) analogous to §87(2)(d) of the Freedom of Information
Law in conjunction with 17 U.S.C. §107, which codifies the doctrine of "fair use". Section
87(2)(d) permits an agency to withhold records that "are trade secrets or are submitted to an
agency by a commercial enterprise or derived from information obtained from a commercial
enterprise and which if disclosed would cause substantial injury to the competitive position
of the subject enterprise." Under §107, copyrighted work may be reproduced "for purposes
such as criticism, comment, news reporting, teaching (including multiple copies for classroom
use), scholarship, or research" without infringement of the copyright. Further, the provision
describes the factors to be considered in determining whether a work may be reproduced for
a fair use, including "the effect of the use upon the potential market for or value of the
copyrighted work" [17 U.S.C. §107(4)].

According to the Department of Justice, the most common basis for the assertion of
the federal Act's "trade secret" exception involves "a showing of competitive harm," and in
the context of a request for a copyrighted work, the exception may be invoked "whenever it
is determined that the copyright holder's market for his work would be adversely affected by
FOIA disclosure" (FOIA Update, supra). As such, it was concluded that the trade secret
exception:

"stands as a viable means of protecting commercially valuable
copyrighted works where FOIA disclosure would have a
substantial adverse effect on the copyright holder's potential
market. Such use of Exemption 4 is fully consonant with its
broad purpose of protecting the commercial interests of those
who submit information to government... Moreover, as has
been suggested, where FOIA disclosure would have an
adverse impact on 'the potential market for or value of [a]
copyrighted work,' 17 U.S.C. §107(4), Exemption 4 and the
Copyright Act actually embody virtually congruent protection,
because such an adverse economic effect will almost always
preclude a 'fair use' copyright defense...Thus, Exemption 4
should protect such materials in the same instances in which
copyright infringement would be found" (id.).

In my opinion, due to the similarities between the federal Freedom of Information Act
and the New York Freedom of Information Law, the analysis by the Justice Department may
properly be applied when making determinations regarding the reproduction of copyrighted
materials maintained by entities of government in New York. In sum, if reproduction of
copyrighted software and similar records would "cause substantial injury to the competitive
position of the subject enterprise," i.e., the holder of the copyright, in conjunction with
§87(2)(d) of the Freedom of Information Law, it would appear that an agency could preclude
reproduction of the work.

Next, §87(2)(f) permits an agency to withhold records to the extent that disclosure
"would endanger the life or safety of any person." There are numerous situations potentially
in which data stored in a GIS could be withheld to protect public safety or avoid interference
with a law enforcement function.

Another provision of possible significance is §87(2)(i), which authorizes an agency
to withhold "computer access codes". Based on its legislative history, that provision is
intended to permit agencies to withhold access codes which if disclosed would provide the
recipient of a code with the ability to gain unauthorized access to information. Insofar as
disclosure would enable a person with an access code to gain access to information without
the authority to do so, or to shift, add, delete or alter information, I believe that an access
code could justifiably be withheld. On the other hand, if disclosure would not permit an
individual to gain unauthorized access information or the ability to alter the information,
§87(2)(i) would not likely be applicable.

Lastly, it is becoming increasingly critical to consider the design of information
systems used by government in order to provide maximum access to records, while
concurrently protecting against disclosure of deniable information. In providing advice and
guidance, there has been a need to emphasize that access and privacy, for instance, are not
necessarily conflicting values. Rather, I believe that it should be government's goal to
interpret the law in a manner that enhances both access and privacy.

There are a variety of instances in which forethought regarding the design of
information systems can or could have served the interests of the public and government
agencies. For instance, a situation arose in which a request was made for payroll information
regarding a municipality's employees, and the information was maintained on a database that
includes social security numbers. A social security number clearly may be withheld on the
ground that disclosure would constitute an unwarranted invasion of personal privacy. The
agency, based upon its existing computer program, contended that it could not reproduce a
tape without social security numbers without engaging in reprogramming. If the program had
been designed to enable the agency to segregate or delete social security numbers from the
remaining aspects of the tape, all of which were public, the public would have been better
served and the intent of the law would have been met.

Through the design of information systems that provide appropriate disclosure
coupled with the protection of personal privacy, often an agency need only delete certain
fields from a database. Once the fields containing protected information are deleted, the
database becomes fully public.

In conjunction with the foregoing, the Committee on Open Government has
recommended that a new §89(9) be added to the Freedom of Information Law as follows:

"When records maintained electronically include items of
information that would be available under this article, as well
as items of information that may be withheld, an agency in
designing its information retrieval methods, whenever
practicable and reasonable, shall do so in a manner that
permits the segregation and retrieval of available items in
order to foster maximum public access."

Irrespective of whether the proposal is enacted, it is critical, in my opinion, that
agencies consider the content of their electronic information systems with a view toward the
Freedom of Information Law. With foresight, their systems can be designed in a manner that
fosters maximum access and concurrently protects against disclosure of information that may
justifiably be shielded.

I hope that the foregoing will be useful to you and your colleagues. If there are
questions, or if you believe that I can be of assistance, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Bruce Oswald