May 3, 1993


Mr. John J. Sheehan
P.O. Box 604
Binghamton, NY 13902

Dear Mr. Sheehan:

You may recall that on March 30, I prepared an advisory
opinion addressed to you concerning the propriety of a fee of fifty
dollars assessed by the NYS Department of Transportation in
response to a request for data relating to accidents occurring at
a particular location. It was suggested in the opinion that the
fee was likely inconsistent with the Freedom of Information Law.
However, my response was based upon inaccurate assumptions.
Consequently, a representative of the Department asked that I
provide "a clarification" of the matter.

In this regard, as you may be aware, §89(3) of the Freedom of
Information Law states in part that an agency need not create a
record in response to a request, and the primary assumption was
that the Department had provided an existing record. In such a
circumstance and as indicated in the correspondence of March 30,
the fee for reproducing an existing record would be based on
§87(1)(b)(iii) of the Freedom of Information Law, unless a statute
other than the Freedom of Information Law authorizes a different
fee. Under the cited provision of the Freedom of Information Law,
an agency may charge a maximum of twenty-five cents per photocopy
up to nine by inches, or the actual cost of reproducing other
records, i.e., those that cannot be photocopied.

Nevertheless, with respect to the kind of report that you
request, the Department does not maintain the reports in a readily
retrievable manner; rather, I was informed that, in response to
those "who have a genuine and serious need", it will produce
"custom-generated" reports on a "user-fee basis." Stated
differently, Department engages in computer programming in order to
create a new record in situations such as that relating to your

When information is maintained electronically, in a computer,
for example, it has been advised that if the information sought is
available under the Freedom of Information Law and may be retrieved
by means of existing computer programs, an agency is required to
disclose the information. In that kind of situation, the agency in
my view 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, in my opinion,
be the equivalent of creating a new record. As stated earlier,
since §89(3) does not require an agency to create a record, I do
not believe that an agency would be required to reprogram or
develop new programs to retrieve information that would otherwise
be available [see Guerrier v. Hernandez-Cuebas, 165 AD 2d 218

If an agency engages in reprogramming or the development of
new programs in order to create a new record or records, in my
opinion, it would be acting above and beyond the requirements of
the Freedom of Information Law. In that event, I do not believe
that the provisions in the Freedom of Information Law pertaining to
fees would be applicable or serve as a limitation on the fee that
could be charged. From my perspective, the "user-fee" charged by
the Department in response to your request appears to have been
appropriate, for the fee need not have been based on the Freedom of
Information Law, and because the fee appears to have been
reasonable in view of the effort needed to generate the report.

I hope that the foregoing serves to clarify the matter. If
you have questions concerning the issue, please feel free to
contact me.



Robert J. Freeman
Executive Director


cc: Peter B. Shawhan, Assistant Counsel
James DelPrincipe, Records Access Officer