From:   Freeman, Robert (DOS)
Sent:    Wednesday, April 21, 2010 3:25 PM
Subject:           Computer programs


As you may be aware, FOIL is applicable to all agency records, and the term “record” is defined to mean any information in any physical form whatsoever kept, held, filed, produced or reproduced by, with or for an agency, such as the Department of Agriculture and Markets.  Based on that definition, because software consists of or contains information and exists in a physical form, it has been advised that software constitutes a “record” that falls within the coverage of FOIL.  Whether it is accessible would be dependent on extant facts.

From my perspective, software generally enables a user to manipulate data and may be considered somewhat analogous to a written manual that describes a series of procedures or steps to be taken in order to carry out a certain function.

In the circumstance that you described, where the software is not licensed by a private entity and
there are no security concerns, I believe that it would be accessible under the FOIL.

I hope that I have been of assistance.

Robert J. Freeman
Executive Director
Committee on Open Government
Department of State
One Commerce Plaza, Suite 650
99 Washington Avenue
Albany, NY 12231
Phone: (518)474-2518
Fax: (518)474-1927