From: Freeman, Robert (DOS)
Sent: Wednesday, February 01, 2012 8:51 AM
Subject: RE: Question

Hi –

The statement is correct. FOIL pertains to existing records and states, in general, that an
agency need not create a record in response to a request for information; it may choose to do
so, but is not required to do so. Similarly, nothing in FOIL requires and agency to supply
information in response to questions. Although we answer questions constantly, the FOIL
does not require that we must.

Often the issue involves the manner in which a request is made and how interested an agency
might be in serving the public. If the question is: "How much did the school district pay last
year to heat the high school", technically, there is no obligation to respond to comply with
FOIL. If the request is: " I would like the record indicating the cost to heat the school last year",
there may not be a particular record that would indicate a total cost. In that event, there
would be no obligation to create a record that reflects the total cost. However, if the request
is for "any records that indicate the cost of heating the school last year", it is likely that records
exist, perhaps 12 monthly bills or quarterly bills. Once in receipt of those records, the
applicant could prepare his/her own total.

I hope that my response clearly answers the question and wish only the best for you and
yours. If there is a need to discuss the matter, please feel free to call.

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