July 26, 1995



Ms. Mary Claire
PO Box 250
Glenham, NY 12527

Dear Ms Claire:

I recently received materials from an assistant to Senator Stephen M. Saland, Ms. Inger Beisner, concerning your efforts in gaining access to certain information from the Employees' Retirement System. The Committee on Open Government, a unit of the Department of State, is authorized to provide advice pertaining to the State's Freedom of Information Law.

As I understand the matter, you directed two requests to the Retirement System. The first involved a list of members of the New York State Correction Officer Security Service Unit who died while actively employed and were eligible to retire under §89 of the Retirement and Social Security Law. You were initially informed that the list would be made available upon receipt of a request made under the Freedom of Information Law. Apparently, however, after submitting a request, you were told that the list would not be made available.

In an effort to learn more of the matter and to assist you, I contacted the person with whom you spoke, Ms. Nancy Winnie. In brief, she explained that when she first discussed the request, she believed that a list could be readily developed. Nevertheless, upon further inquiry, Ms. Winnie was informed that there is no method of retrieving the information needed to prepare a list via the Retirement System's computer programs.

As the issue relates to the Freedom of Information Law, it is noted at the outset that statute pertains to existing records, and that §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 names that you sought cannot be retrieved or extracted without significant reprogramming, the Retirement System 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.

In short, it does not appear that the Retirement System purposefully denied access to a list of names; rather, it is my understanding that the System does not have the ability to retrieve the names by means of its existing computer programs.

The other request involves "information...on administrative hearing cases and or court actions that deal with Section 89 and the payment of pension reserve funds." In response to the request, Steven A. Lillienstein, Assistant Counsel to the Retirement System, was able to locate two decisions on the basis of his office's "hearing issues index card file under the heading 'Section 89'." He added, however, that he was unable to locate court cases or other documentation that might fall within the scope of your request.

From my perspective, the issue pertinent to that request is similar to that discussed concerning the request for a list of names. Specifically, §89(3) of the Freedom of Information Law requires that an applicant "reasonably describe" the records sought. It has been held by the State's highest court that a request reasonably describes the records when the agency can locate and identify the records based on the terms of a request, and that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

Although it was found in the decision cited above that the agency could not reject the request due to its breadth, it was also stated that:

"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system: whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system. In the context of your request, the Retirement System apparently does not maintain the information sought by means of the kinds of headings or identifiers to which you referred. Therefore, I do not believe that its staff would be required by the Freedom of Information Law to review all of its hearing or case files individually in order to locate those of potential interest to you.

Lastly, since reference is made in the correspondence to the ability to appeal, it is questionable in my view whether the Retirement System denied access to records. With respect to both requests, it appears that, without fault on your part or that of the System, the information sought is simply not maintained or filed in a manner that enables staff to retrieve or locate it. Nevertheless, the provision concerning appeals is §89(4)(a) of the Freedom of Information Law, which states in relevant part that:

"any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person thereof designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."

If you choose to do so, I believe that you may direct an appeal to Albert Brooks, Assistant Counsel, Office of the State Comptroller, Gov. Smith State Office Building, Albany, NY 12244.

I hope that the preceding commentary serves to clarify the matter and that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Nancy Winnie
Steven A. Lillienstein