May 16, 1995



Mr. Dana J. Peryea
PO Box 42, Rt. 86
Ray Brook, NY 12977

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear Mr. Peryea:

I have received your correspondence in which you questioned ability of the Town of Harrietstown to "deny" a request made under the Freedom of Information Law.

You sought the names of owners, parcel numbers and the tax assessed contained in the Town's 1994 "Tax Roll Assessment" and 1995 "Revaluation Tax Roll Assessment" on computer discs that you supplied. In response to the request, you were informed that the data is available on hard copy, but that:

"In order to comply with your request for data on computer disk, the 1994 Final Assessment Roll would have to be reinstalled onto our system, the data extracted and reformatted, and then the preliminary roll for 1995 would need to be reloaded for purposes of compiling the 1995 Tentative Assessment Roll. The data on our system is in a more complex format than the one you outlined in your request. Once the data has been extracted, it would also have to be edited into a modified format..."

"We are investigating the possibility of hiring an outside consultant to perform the above mentioned extracting and reformatting tasks and will contact you again once we ascertain the cost of same. In the meantime, we are returning your computer disks to you."

In this regard, the Freedom of Information Law pertains to existing records, and §89(3) of the Law states in part that an agency need not create a record in response to a request. It is emphasized, however, that §86(4) of the Freedom of Information Law defines the term "record" expansively 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 in my opinion constitute a "record" subject to rights of access conferred by the Law. Further, the definition of "record" includes specific reference to computer tapes and discs, and it was held more than ten years ago that "[i]nformation is increasingly being stored in computers and access to such data should not be restricted merely because it is not in printed form" [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)].

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 (1991)].

In this instance, if the information that you sought cannot be retrieved or extracted without significant reprogramming, the Town would not, in my opinion, be obliged to develop new programs or modify its existing programs in an effort to generate the data you seek. I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Sandra Aery