July 17, 2014
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
We are in receipt of your request for an advisory opinion regarding the denial of a Freedom of Information Law (FOIL) request for “copies of delinquent information and/or tax lien information on 100 properties located in the Village of Islandia”. On March 3rd, CoreLogic appealed the denial, and on June 10th Joseph W. Prokop, attorney for the Village of Islandia, responded.
In this regard, we offer the following comments.
First, we generally agree with Mr. Prokop’s statement that the Village of Islandia does not need to “create records or reports that do not exist,” for FOIL pertains to existing records [see §89(3)].
Second, as we understand the response, while there may be no tax lien list, it is inferred that there is documentation that contains the information sought, but that the Village does not maintain and cannot produce the documentation that includes the elements you requested in the form of a list. If the Village does not have the ability to gather the data, there would be no obligation to develop the capacity to do so. However, if the Village has the ability to make the data available with reasonable effort, we believe that it would be required to do so to the extent that the data is accessible under FOIL and you are willing to pay the actual cost of reproduction [see §87(1)(b)(iii)].
As you may be aware, the Freedom of Information Law pertains to agency records, and §86(4) of the Law defines the term "record" 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."
Based upon 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 [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)].
Although an agency need not create new records to comply with FOIL, §89(3)(a) states that, “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.” In that kind of situation, the agency 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 be the equivalent of creating a new record.
We believe that there is a clear distinction between extracting information and creating it. If an agency's database consists of 10 items or "fields", and a request involves items 1, 3 and 5, but the agency has never produced that combination of data, would it be "creating" a new record? The answer is dependent on the nature of the agency's electronic information system. If the agency has the ability to retrieve or extract those items by means of its existing programs, i.e., entering queries, it would not be creating a new record; it would merely be retrieving what it has the ability to retrieve in conjunction with its electronic filing system. An apt analogy may be to a filing cabinet in which files are stored alphabetically and an applicant seeks items "A", "L" and "X". Although the agency may never have retrieved that combination of files in the past, it has the ability to do so, because the request was made in a manner applicable to the agency's filing system.
If Mr. Prokop’s contention is accurate, that your request “requires the Village to analyze several conditions and perform several actions to try to figure out what records the company is requesting, rather than just produce documents…,” we would agree that the Village would not be required to engage in an effort of that nature.
Next, an appeal of denial of the FOIL request was made on March 3rd but no determination was made within the ten business days as required by §89(4)(a) of FOIL. It is our view, therefore, that CoreLogic correctly filed an appeal.
Lastly, when the items sought can be generated and retrieved with reasonable effort, we believe that they must be disclosed to comply with FOIL. The purpose of a request and intended use of records are generally irrelevant. Further, although lists of names addresses may often be withheld pursuant to §89(2)(b)(iii) of FOIL, §89(2)(c )(iv) specifies that a list involving the information sought that relates to real property “shall not be deemed an unwarranted invasion of personal privacy.”
We hope that we have been of assistance.
Robert J. Freeman
Lucya J. Pak