Electronic Discovery Law
Software Necessary to View Files Subject to Production under NY Freedom of Information Law
In this case, the court determined that the software program necessary to view certain files produced to the petitioner subject to New York’s Freedom of Information Law was a “record” for purposes of the law and was thus subject to production itself.
Pursuant to New York’s Freedom of Information Law, Petitioner requested and received records in connection with a sales tax audit performed by the Department of Taxation and Finance. However, certain data could not be viewed without a copy of the Department’s Audit Framework Extension software, which the Department refused to provide. Accordingly, Petitioner moved to compel production. The motion was denied, as was Petitioner's motion for reconsideration. Petitioner appealed.
Taking up the question, the court provided the broad definition of a “record” under the law, namely “any information kept, held, filed, produced, or reproduced by, with or for an agency …, in any physical form whatsoever ….” The Department argued that the software was not a record because it contained no information. Petitioner disagreed.
The court agreed with the petitioner:
The court also found that the Department failed to meet its burden of demonstrating the applicability of the proffered statutory exemption.
A copy of the opinion is available here.
Supreme Court, Appellate Division,
Holdings: The Supreme Court, Appellate Division, Rose, J., held that:
Statutory exemptions to disclosure of agency records under Freedom of Information Law (FOIL) are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access. McKinney's Public Officers Law § 84 et seq.
Software belonging to Department of Taxation and Finance, which requester needed to view electronic files that Department produced in response to Freedom of Information Law (FOIL) request, contained information, and thus software was “record” subject to disclosure under FOIL; software was not just delivery system or data warehouse, but enabled Department to manipulate data to conduct sales tax audit, and thus was similar to a written manual that described a series of procedures that would be subject to disclosure under FOIL. McKinney's Public Officers Law § 86(4).
 Records 326
Exemption to disclosure under Freedom of Information Law (FOIL), for material whose disclosure would jeopardize the capacity of an agency to guarantee the security of its information technology assets, did not apply to software belonging to Department of Taxation and Finance, which requester needed to view electronic files that Department produced in response to FOIL request for information on sales tax audit; Department contended only that software could be used to generate fraudulent letters, but exemption was concerned with ensuring security of an agency's information technology assets from electronic attack. McKinney's Public Officers Law § 87(2)(i).
 It is by now axiomatic that FOIL “ ‘impos[es] a broad standard of open disclosure,’ ” in that all government records are presumptively available to the public unless they fall within a specific statutory exemption ( Matter of Schenectady County Socy. for the Prevention of Cruelty to Animals, Inc. v. Mills, 74 A.D.3d 1417, 1418, 904 N.Y.S.2d 512 , affd. ––– A.D.3d ––––, ––– N.Y.S.2d –––– , quoting Matter of Encore Coll. Bookstores v. Auxiliary Serv. Corp. of State Univ. of N.Y. at Farmingdale, 87 N.Y.2d 410, 416, 639 N.Y.S.2d 990, 663 N.E.2d 302  ). For FOIL purposes, the term record is broadly defined as including “any information kept, held, filed, produced or reproduced by, with or for an agency ..., in any physical form whatsoever, including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes” (Public Officers Law § 86  ). On the other hand, statutory “[e]xemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access” ( Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 566, 505 N.Y.S.2d 576, 496 N.E.2d 665 ; see Matter of Carnevale v. City of Albany, 68 A.D.3d 1290, 1292, 891 N.Y.S.2d 495  ).
FN1. We note that advisory opinions from the Committee on Open Government are not binding authority, but may be considered to be persuasive based on the strength of their reasoning and analysis (see Matter of John P. v. Whalen, 54 N.Y.2d 89, 96, 444 N.Y.S.2d 598, 429 N.E.2d 117 ; Matter of Town of Waterford v. New York State Dept. of Envtl. Conservation, 77 A.D.3d 224, 230 n. 5, 906 N.Y.S.2d 651 , lv. dismissed 15 N.Y.3d
932 N.Y.S.2d 243, 2011 N.Y. Slip Op. 07780
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