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State need not create record it doesn't ordinarily keep

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State need not create record it doesn't ordinarily keep07/31/95 NEW YORK--The state Insurance Department need not comply with a state…

State need not create record it doesn’t ordinarily keep

07/31/95

NEW YORK–The state Insurance Department need not comply with a state open records act request that would require it to compile computerized data to create a record it does not ordinarily keep, according to a 5-0, late-June decision by the Appellate Division of the Supreme Court of New York in Albany.

The decision came in response to an appeal by Jeff Gabriels, who had been denied a computer printout of the form number, type of form, kind of insurance and disposition of all health and life insurance policy forms that insurance companies filed with the department between Jan. 1, 1993, and March 3, 1993.

To respond to Gabriels’ request, a computer operator would need to create new records from an online search of the database using Gabriels’ request criteria, the appellate court noted. The court concluded that the state open records act does not require the department to create such records or develop a program to do so.

New York’s open records law states that an agency need not create a new record to comply with a request.

The Insurance Department conceded that the information Gabriels sought fell within the scope of the state open records act. The department argued, however, that it did not need to comply with the request because it did not keep the information in the form that Gabriels requested.

The department enters policy forms into its computer database. Because the department has no need to maintain records that display the information Gabriels sought, it does not maintain a program to print the data in a single report. The department denied Gabriel’s initial request on that basis.

The denial was upheld on administrative appeal, prompting Gabriels to bring an action before the Supreme Court, a trial court, in Albany. The Supreme Court ruled for the department in late April 1994. (Gabriels v. Curiale)