The California Supreme Court has recognized that where feasible an agency may be required to produce electronic information in a non-native format to facilitate redaction and anonymizing to protect privacy interests even if the native format in which the data is held would not facilitate such functions. In other words, in certain circumstances, an agency may be required to create a record with responsive information where the burden of doing so is not outweighed by the interests in disclosure. See ACLU v. Superior Court, 3 Cal. 5th 1032, 1047, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017). But cf. Sander v. Superior Court, 26 Cal. App. 5th 651, 665-67, 237 Cal. Rptr. 3d 276 (2018) (holding request to State Bar of California for individually unidentifiable bar admission records required the creation of new records through data manipulation that involved recoding with new values, and thus was beyond the scope of the CPRA).
The Act specifically provides that, “No public officer or agency shall be required to prepare new reports, summaries, or compilations not in existence at the time of the request.” O.C.G.A. § 50-18-71(j). See, e.g., Griffin Indus., Inc. v. Ga. Dep't of Agric., 313 Ga. App. 69, 74, 720 S.E.2d 212, 216 (2011)(given evidence that agency “did not maintain the purported e-mails on its system and would have to extract them from backup tapes using a laborious compilation process, the information sought … ‘was not an existing public record, and non-disclosure thereof did not violate the Act.’).
In the case of electronic records, data and data fields, the Act provides that agencies shall produce electronic copies or, if the requester prefers, printouts of electronic records or data from data base fields that the agency maintains using the computer programs that the agency has in its possession. § 50-18-71(f).
An agency shall not refuse to produce such electronic records, data or data fields on the grounds that exporting data or redaction of exempted information will require inputting range, search, filter, report parameters, or similar commands or instructions into an agency's computer system so long as such commands or instructions can be executed using existing computer programs that the agency uses in the ordinary course of business to access, support, or otherwise manage the records or data. Id.
A requester may request production in the format in which such data or electronic records are kept by the agency, or in a standard export format such as a flat file electronic American Standard Code for Information Exchange (ASCII) format, if the agency’s existing computer programs support such an export format. Id. (providing that in such instance, the data or electronic records shall be downloaded in such format onto suitable electronic media by the agency). Id.
In lieu of providing separate printouts or copies of records or data, an agency may provide access to records through a website accessible by the public. However, if an agency receives a request for data fields, it shall not refuse to provide the responsive data on the grounds that the data is available in whole or in its constituent parts through a website if the requester seeks the data in the electronic format in which it is kept. § 50-18-71(h) (also providing that if an agency contracts with a private vendor to collect or maintain public records, the agency shall ensure that the arrangement does not limit public access to those records).
The public body need not create or maintain records it would not otherwise create or maintain. See Chicago Trib. Co. v. Dept of Fin. & Pro. Regul., 2014 IL App (4th) 130417, ¶ 34, 8 N.E.3d 11, 19 (“FOIA (1) ‘is not designed to compel the compilation of data the governmental body does not ordinarily keep’”) (citing Kenyon v. Garrels, 184 Ill. App. 3d 28, 540 N.E.2d 11 (1989); Public Access Opinion 11-001 (available at https://perma.cc/Y3YQ-69EP.
Yes. “An agency may, but is not required to . . . create a public record.” 1 V.S.A. § 316(i). In the event an agency creates a public record on behalf of a requestor, the agency is allowed to recover the cost of the staff time associated with creating the record. See 1 V.S.A. § 316(c)(2); see also Judicial Watch, Inc. v. State, 2005 VT 108, ¶¶ 6, 19, 892 A.2d 191, 195, 200 (Vt. 2005).
The PRA does not require an agency to create new records that do not already exist. An agency may respond to requests by providing customized access to existing databases, though it may assess fees (which must be disclosed in advance) if doing so requires use of data services not used by the agency for other agency purposes. RCW 42.56.120(3).
Pursuant to Wis. Stat. § 19.35(1)(L), “this subsection does not require an authority to create a new record by extracting information from existing records and compiling the information in a new format.”