Government Agencies are required to make their records available to any citizen upon request, with a few exceptions. One exception is a privacy exemption allowing an agency to deny access to records that “if disclosed would constitute an unwarranted invasion of personal privacy.” Earlier in December the Court of Appeals issued a decision that held that the burden of demonstrating that the privacy exemption applies is on the agency, not the requesting party (In the Matter of Data Tree, LLC v. Edward P. Romaine, & Co., December 18, 2007, Court of Appeals No. 2007/173, http://www.nycourts.gov/ctapps/decisions/dec07/dec07.htm ). The Court of Appeals also found that generally “FOIL does not require the party requesting the information to show any particular need or purpose”, although the Court noted that “motive or purpose is not always irrelevant”, such as where it involves an “unwarranted invasion of personal privacy” or to obtain lists of names and addresses to be used for “commercial or fund-raising purposes” (p.7).
These findings are not the most interesting aspect of the case, however. The most interesting finding – at least to those of us who have been denied access to information for this very reason -- is that reformatting electronic data to meet a specific request is not necessarily the creation of a new record. Acknowledging that “an agency is not required to create records in order to comply with a FOIL request”, the Court of Appeals nevertheless concludes:
"As stated earlier, the term ‘records’ means, among other things, ‘computer tapes or discs.’ Disclosure of records is not always necessarily made by the printing out of information on paper, but may require duplicating data to another storage medium, such as a compact disc. [Footnote omitted] Thus, if the records are maintained electronically by an agency and are retrievable with reasonable effort, that agency is required to disclose the information. "(p.9) . . . "A simple manipulation of the computer necessary to transfer existing records should not, if it does not involve significant time or expense, be treated as creation of a new document. "(p.10) (Emphasis Added).Although the decision leaves room for an agency to argue time and expense, the New York Court of Appeals has clearly issued the message that the burden will be on the agency to justify a denial of access to government records.
Halleluiah and Happy New Year!