From: Freeman, Robert (DOS) on behalf of Freeman, Robert J (DOS)
Sent: Thursday, June 26, 2014 3:17 PM
Subject: RE: request for data of Department of State
First, I thank you for your kind words. As you are likely aware, the Committee on Open Government is a
unique government agency, and I am grateful to have had the opportunity to have been involved in the
development and interpretation of access to information laws in New York.
Second, in consideration of your remarks and questions, I have inquired with respect to the issues that
you raised. Based on information shared with me, it appears that the situation is somewhat rare.
By way of background, the predecessor of the Division of Consumer Protection at the Department of
State had been a separate state agency, the Consumer Protection Board (CPB). The information system
that is the subject of your request was initiated several years ago by the CPB and involves a Lotus Notes
application made available by Intertrac, a private company. The Department of State does not use Lotus
Notes, and when the CPB was transferred to the Department of State and renamed the Division of
Consumer Protection, it was determined that the cost of developing a new information management
system would have been significant. Rather than taking action of that nature, the CPB’s servers were
transferred to the Department of State. I was also informed that reports involving data in the system
can be prepared only by Computerworks, and that doing so involves a charge incurred by the
Moreover, having reviewed several entries, even if the data of your interest could be accessed and
extracted with reasonable and at minimal cost, there are elements in many entries that would, if
disclosed, constitute an unwarranted invasion of personal privacy, and therefore, would be deniable
pursuant to §§87(2)(b) and 89(2)(b) of FOIL. For example, a consumer’s description of a problem and
that person’s requested settlement appear in narrative form, and those that I read included a personal
checking account number in one instance and a social security number in another. In short, due to the
nature of the information contained in the entries, which can differ widely in content, of necessity, each
would have to be read to ascertain whether there are items that must be withheld based on the
exception in FOIL concerning the authority to do so to protect personal privacy.
I have described publicly on many occasions what I have come to call “the if you can, you must”
principle. Stated differently, if a government agency has the ability, with reasonable effort, to extract
and disclose information maintained electronically, it must do so to comply with FOIL. I hope that the
foregoing description of the problem adequately describes the rationale for the Department’s response
and the reality that, in this instance, the Department simply cannot, without herculean effort,
accommodate you or honor your request.
I hope that I have been of assistance.