NEW YORK

New York

The state law specifically includes information stored on computer, but in a few cases, agencies have been able to deny records that existed only on computer and not in paper. The state’s Committee on Open Government has found that e-mail of public officials is covered by the FOIL. Courts have found that information maintained by a private entity that related to government business is covered by the open records law. New York journalists report what they find to be "excessive fees" for electronic records.

The law. Under the Freedom of Information Law, a record is "any information . . . in any physical form whatsoever including, but not limited to . . . computer tapes or discs." N.Y. Pub. Off. Law § 86(4) (McKinney 1988). The law exempts computer access codes. § 87(2)(i). It forbids "sale or release of lists of names and addresses if such lists would be used for commercial or fund- raising purposes." § 89(2)(b)(iii). The Department of Labor may "use optical disk technology to record and maintain public records, papers, documents or matters." N.Y. Labor Law § 35(1) (McKinney 1988).

Legislative information is available over the Internet at no cost, including the text of bills and resolutions, the constitution and laws of the state, and vote information for the final passage of bills.

Case law states, however, that access to information in a computer cannot be restricted because it is not in printed form. Babigian v. Evans, 104 Misc.2d 140, 427 N.Y.S.2d 688 (Sup. Ct. 1980), aff’d, 97 A.D.2d 992 (1st Dept. 1983). On the other hand, an agency is not required to prepare any record not possessed or maintained by it. N.Y. Pub. Off. Law. § 89(3) (McKinney 1988)

Cases & opinions. The New York Committee on Open Government is responsible for overseeing and advising with regard to the Freedom of Information, Open Meetings and Personal Privacy Protection Laws (Public Officers Law, Articles 6, 7 and 6-A respectively).

The prohibition against releasing lists of names when they would be used for commercial purposes did not extend to real estate assessment rolls stored in computers because of a "history of public access to assessment records." The form of the records and petitioner’s purpose in seeking them do not alter their public character or petitioner’s concomitant right to inspect and copy the computer tapes. Szikszay v. Buelow, 436 N.Y.S.2d 558 (N.Y. Sup. Ct., Erie County 1981). An agency with electronic records must honor a requester’s choice of computer tape or printout. The requester wanted the tape rather than a printout that would have exceeded one million pages. Brownstone Publishers v. New York City Dept. of Buildings, 560 N.Y.S.2d 642 (N.Y. App. Div. 1990).

Records contained in an indexed computer database may be protected by the New York State Personal Privacy Protection Law ("PPPL"), which was enacted to protect against the danger to personal privacy posed by modern computerized data collection and retrieval systems. See Public Officers Law, Art. 6-A (McKinney); Spargo v. New York State Commission on Government Integrity, 140 A.D.2d 26, 531 N.Y.S.2d 417 (3d Dept. 1988).
In a case involving a request for specific information in computer files, a judge wrote that "information 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 N.Y.S.2d 688 (N.Y. Sup. Ct., New York County 1980). A private company representing property owners challenging their real property assessments did not get access to copies of a computer data management system where the computer tape file contained information from both property cards, which are public, and from real property transfer reports, which are not. The court said "the computer data management system derived from the exempt forms is . . . protected." Property Valuation Analysts, Inc. v. Williams, N.Y.S.2d 545 (N.Y. App. Div. 1990).

An agency must disclose information if it is available under the Freedom of Information Law and may be retrieved by means of existing computer programs, but it is not required to disclose the information that can only be retrieved by new programming or the alteration of existing programs. N.Y. Comm. On Open Gov’t Op. 7595 (March 4, 1993). An agency which reprograms or develops new programs in order to create a new record, is acting above and beyond the requirements of the disclosure laws. N.Y. Comm. On Open Gov’t Op. 7686 (May 3, 1993).

Fees. The law limits the cost of a photocopy to 25 cents, "or the actual cost of reproducing any other record, except when a different fee is otherwise prescribed" by statute. N.Y. Pub. Off. Law §§ 87(l)(b)(iii), 88(l)(c).

Software. A computer program to allow assessors and others to query property information on a proprietary Web site, does not have to be open to the public. "As I understand its function, the application is essentially a tool that enables assessors and others to use data; it is not data itself and, therefore, in my opinion, it could not be characterized as a ‘record’ as that term is defined in §86(4) of the Freedom of Information Law. The application, like calculators or computers that provide individuals with the means to create or use data, but which are not themselves ‘records’, would not in my opinion constitute a record for purposes of that statute. Further, although agencies are increasingly making data available to the public via the Internet, I do not believe that there is any obligation to do so." N.Y. Comm. On Open Gov’t Op. 12366 (Oct. 30, 2000).

When information is maintained electronically, 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 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. Since º89(3) does not require an agency to create a record, an agency would not 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)]. N.Y. Comm. On Open Gov’t Op. 10566 (Jan. 22, 1998).

"Software would itself constitute a record that falls within the framework of the Freedom of Information Law, for it would be analogous to a written manual describing a series of procedures to be followed to carry out a certain function. As such, I believe that it would constitute a record falling within the coverage of the Law." N.Y. Comm. On Open Gov’t Op. 10882 (June 24, 1998)

E-mail. Government agency e-mail is considered a public record. In addition, when officials conduct business via e-mail, it may violate the open meetings law. N.Y. Comm. On Open Gov’t Op. 12348 (Oct. 19, 2000)

Resources. Freedom of Information Law Advisory Opinion Listing