From: Jobin-Davis, Camille (DOS)
Sent: Wednesday, March 05, 2014 3:23 PM
Subject: FOIL - format
You asked about whether an agency has a responsibility to forward records in the requested data
delimited file, as opposed to a PDF file, when the data clearly existed, or perhaps originally existed in a
data delimited file.
In response, please note the following:
In 2008, section 89(3)(a) of the Freedom of Information Law was amended to include the following
“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. When doing so requires less employee time than engaging in manual retrieval or redactions from non-electronic records, the agency shall be required to retrieve or extract such record or data electronically. Any programming necessary to retrieve a record maintained in a computer storage system and to transfer that record to the medium requested by a person or to allow the transferred record to be read or printed shall not be deemed to be the preparation or creation of a new record.”
Essentially, this represented codification of case law outlined at the following link:
http://docs.dos.ny.gov/coog/ftext/f16676.htm and Data Tree, LLC v. Romaine, 9 NY3d 454 (2007) - -
insofar as it confirmed that FOIL deals with records maintained electronically and that "A simple
manipulation of the computer necessary to transfer existing records should not, if it does not involve
significant time or expense, be treated as creation of a new document".
Section 89(b) was amended at the same time, as follows:
“All entities shall, provided such entity has reasonable means available, accept requests for records submitted in the form of electronic mail and shall respond to such requests by electronic mail,…”
And, section 89(5)(a) was amended as follows:
“An agency shall provide records on the medium requested by a person, if the agency can reasonably make such
copy or have such copy made by engaging an outside professional service. Records provided in a computer format
shall not be encrypted.”
It is our opinion that these provisions, read together, require agencies to provide records in the format
that it is requested, assuming the agency has the ability to do so with reasonable effort. This would
include forwarding information in a data delimited file rather than converting it to PDF prior to release.
Wish that I had a more precise answer for you, but hopefully this will help!
Camille S. Jobin-Davis, Esq.
NYS Committee on Open Government
Department of State
99 Washington Avenue, Suite 650
Albany, NY 12231