FOIL does not require an agency to prepare any record not possessed or maintained by it. N.Y. Pub. Off. Law. § 89(3) (McKinney 1988); Babigian v. Evans, 104 Misc.2d 140, 427 N.Y.S.2d 688 (1980), aff'd, 97 A.D.2d 992 (1st Dept. 1983) (FOIL does not impose a duty upon a government office to compile statistics in response to an information request). The issue of FOIL disclosure of records maintained in agencies' computerized databases continues to be a developing area of law, and presents an interesting tension between FOIL's objective of promoting accountability through maximum disclosure of governmental records and an agency's lack of a duty to "create" a record for public disclosure (i.e., through the reprogramming of an existing databases) in response to a FOIL request.
A foundational New York Court of Appeals case in this area is Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 880 N.E.2d 10, 849 N.Y.S.2d 489 (2007). In Data Tree, the Court of Appeals held that “if the records are maintained electronically by an agency and are retrievable with reasonable effort, that agency is required to disclose the information. In such situation, the agency is merely retrieving the electronic data that it has already compiled.” In that case, questions of fact of fact existed as to whether disclosure of electronic documents could be accomplished by merely retrieving information already maintained electronically or would require the creation of a new record. For cases holdings stemming from Data Tree see In Re New York Comm., 72 A.D.3d 153, 892 N.Y.S.2d 377 (1st Dep’t 2010) (holding that New York Committee for Occupational Safety and Health’s request for all 2006 records transmitted to the City of New York be remanded to the Supreme Court for a hearing to determine whether City must produce electronically stored documents and whether producing hard copy documents creates an undue burden); Hearst Corp. v. Office of State Comptroller, 24 Misc.3d 611, 882 N.Y.S.2d 862 (N.Y. Sup. 2009) (held, disclosure of an electronic spreadsheet which would replace social security numbers with unique identifiers would require State Comptroller to create new records, which is not required under FOIL, but also that the State failed to demonstrate that data in tables that use social security numbers as their primary key is not retrievable through “a simple manipulation of the computer”).
Although this continues to be an evolving issue, the 2008 amendments are now controlling. For cases prior to the amendments, and the Data Tree decision see:
Locator Serv. Grp., Ltd. v. Suffolk Cnty. Comptroller, 40 A.D.3d 760, 836 N.Y.S.2d 223 (2d Dep’t 2007)(disclosure of list of all un-negotiated checks greater than $1,000 and copies of the computer screen showing the payee’s names and addresses for those specific checks did not require the country to create a new record, because in order to access the information sought, county would only be performing queries within its database and utilizing existing software).
• NYPIRG v. Cohen, 188 Misc.2d 658, 663 (N.Y. County Sup. Ct., 2001)
"The [agency's] computers, as aforesaid, contain a great deal of information. To sustain respondents' positions would mean that any time the computer is programmed to provide less than all the information stored therein, a new record would have been prepared. Here, all that is involved is that [the agency] is being asked to provide less than all of the available information. I find that in providing such limited information [the agency] is providing data from records 'possessed or maintained' by it. There is no reason to differentiate between data redacted by a computer and data redacted manually insofar as whether or not the redacted information is a record 'possessed or maintained' by the agency."
• Gabriels v. Curiale, 216 A.D.2d 850, 851 (3d Dep't 1995) (citations omitted)
"However, because the Department has no need to maintain records which only display the particular information petitioner seeks, it does not have an automated or 'batch' program to routinely compile and print out these records in a single report as it does with some of its other unattended recordkeeping. To accommodate petitioner's request, it is necessary for a computer operator to create new records through a 'computer run', i.e., a search of the online databases, accomplished by entering petitioner's criteria. We, therefore, agree with respondent that FOIL does not require the Department to create these new records, nor develop a program to accomplish this task for the purpose of complying with petitioner's request."