Electronic Discovery Law
Software Necessary to View Files Subject to Production under NY Freedom of Information Law
TJS of New York, Inc. v. New York State Dep’t of Taxation and Fin., 932 N.Y.S.2d 243 (N.Y. App. Div. Nov. 3, 2011)
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,Third Department , New York
Albany County
Holdings: The Supreme Court, Appellate Division, Rose, J., held that:
West Headnotes 54
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).
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).
Eric T. Schneiderman, Attorney General,Albany
[1][2] 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 [2010], affd. ––– A.D.3d ––––, ––– N.Y.S.2d –––– [2011], 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 [1995] ). 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 [4] ). 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 [1986]; see Matter of Carnevale v. City of Albany, 68 A.D.3d 1290, 1292, 891 N.Y.S.2d 495 [2009] ).
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 [1981]; 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 [2010], lv. dismissed 15 N.Y.3d
New York State
932 N.Y.S.2d 243, 2011 N.Y. Slip Op. 07780
END OF DOCUMENT
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 description of the software submitted by the Department and the reasoning and analysis contained in the advisory opinions relied on by petitioner lead us to conclude that the software at issue contains information and, thus, constitutes a record for FOIL purposes.FN1 Specifically, the affidavit submitted by the Department from an auditor involved in the design and development of the software program, as well as the attached training manual for the software, reveals that the software is the means for conducting an audit and that, based on data entered by an auditor, the program does reconciliations, creates letters, produces forms, determines taxes due or refunds owed and creates a comprehensive audit report. The June 1998 advisory opinion cited by petitioner concludes that software that enables an agency to manipulate data is a record pursuant to FOIL in the same way that a written manual describing a series of procedures would be subject to disclosure under FOIL (see Comm. on Open Govt. FOIL–AO Letter from Robert J. Freeman to George F. Supan [June 24, 1998]; see also Comm. on Open Govt. FOIL–AO–18079 [2010] ). The 2001 advisory opinion references a definition of software as “a series of instructions designed to produce information that can be seen on a screen, printed, stored, transferred and transmitted” and concludes that it is a record subject to FOIL (see Comm. on Open Govt. FOIL–AO–12920 [2001] ). Given these opinions and the Department's own description of the capabilities of the program, we conclude that it is more than just a delivery system or data warehouse and, instead, falls within FOIL's broad definition of a record subject to disclosure (see Public Officers Law § 86[4]; Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 462, 849 N.Y.S.2d 489, 880 N.E.2d 10 [2007] ).
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,
In the Matter of TJS OF NEW YORK, INC., Appellant,
v.
NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE et al., Respondents.
Nov. 3, 2011.
Background: Petitioner brought article 78 proceeding to compel Department of Taxation and Finance to produce records that were responsive to petitioner's request under Freedom of Information Law (FOIL) for records related to sales tax audit. The Supreme Court, Holdings: The Supreme Court, Appellate Division, Rose, J., held that:
(2) FOIL exemption for material whose disclosure would jeopardize the capacity of an agency to guarantee the security of its information technology assets did not apply.
Reversed and remitted.
Freedom of Information Law (FOIL) imposes 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. McKinney's Public Officers Law § 84 et seq.
Records 326 65
Opinions from the Committee on Open Government regarding what constitutes a record that is subject to disclosure under the Freedom of Information Law (FOIL) are not binding authority, but may be considered to be persuasive based on the strength of their reasoning and analysis. McKinney's Public Officers Law § 86(4).
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).
Exemption to disclosure under Freedom of Information Law (FOIL), for material whose disclosure would jeopardize the capacity of an agency or an entity that has shared information with an agency to guarantee the security of its information technology assets, is concerned with ensuring the security of information technology assets. McKinney's Public Officers Law § 87(2)(i).
An applicant's motive for seeking a record under the Freedom of Information Law (FOIL) is generally irrelevant in determining whether record is available under FOIL. McKinney's Public Officers Law § 84 et seq.
Eric T. Schneiderman, Attorney General,
Appeals (1) from a judgment of the Supreme Court (Sackett, J.), entered August 25, 2010 in Albany County, which, in a proceeding pursuant to CPLR article 78, denied petitioner's motion to compel respondent Department of Taxation and Finance to produce a certain computer software program pursuant to a Freedom of Information Law request, and (2) from an order of said court (McGrath, J.), entered March 3, 2011 in Albany County, which denied petitioner's motion for reconsideration.
Petitioner made a request under the Freedom of Information Law (see Public Officers Law art. 6 [hereinafter FOIL] ) for records in connection with a sales tax audit performed by respondent Department of Taxation and Finance. When Supreme Court (Sackett, J.) ordered the Department to provide petitioner with copies of its records in an electronic format, the Department provided certain data that could not be viewed without a copy of the Department's Audit Framework Extension software, which it refused to provide. Petitioner then moved to compel production of the software program in order to install it on his computer and view the electronic files. The court denied petitioner's motion, concluding that the software program was exempt from disclosure pursuant to Public Officers Law § 87(2)(i). Petitioner's subsequent motion to renew was denied by Supreme Court (McGrath, J.). Petitioner appeals from both the judgment and the latter order.
[1][2] 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 [2010], affd. ––– A.D.3d ––––, ––– N.Y.S.2d –––– [2011], 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 [1995] ). 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 [4] ). 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 [1986]; see Matter of Carnevale v. City of Albany, 68 A.D.3d 1290, 1292, 891 N.Y.S.2d 495 [2009] ).
[3] The Department, relying on advisory opinions from the Committee on Open Government (see Comm. on Open Govt. FOIL–AO–12366 [2000]; see also Comm. on Open Govt. FOIL–AO–15407 [2005] ), contends that the software at issue does not constitute a record for purposes of FOIL because it contains no information. Instead, the Department characterizes it as a mere delivery system or data warehouse. Petitioner disputes this argument, *246 citing the Department's own description of the software as well as advisory opinions in which the Committee on Open Government concludes that software can constitute a record under FOIL (see Comm. on Open Govt. FOIL–AO–12920 [2001]; Comm. on Open Govt. FOIL–AO Letter from Robert J. Freeman to George F. Supan [June 24, 1998] ).
[4] The description of the software submitted by the Department and the reasoning and analysis contained in the advisory opinions relied on by petitioner lead us to conclude that the software at issue contains information and, thus, constitutes a record for FOIL purposes.FN1 Specifically, the affidavit submitted by the Department from an auditor involved in the design and development of the software program, as well as the attached training manual for the software, reveals that the software is the means for conducting an audit and that, based on data entered by an auditor, the program does reconciliations, creates letters, produces forms, determines taxes due or refunds owed and creates a comprehensive audit report. The June 1998 advisory opinion cited by petitioner concludes that software that enables an agency to manipulate data is a record pursuant to FOIL in the same way that a written manual describing a series of procedures would be subject to disclosure under FOIL (see Comm. on Open Govt. FOIL–AO Letter from Robert J. Freeman to George F. Supan [June 24, 1998]; see also Comm. on Open Govt. FOIL–AO–18079 [2010] ). The 2001 advisory opinion references a definition of software as “a series of instructions designed to produce information that can be seen on a screen, printed, stored, transferred and transmitted” and concludes that it is a record subject to FOIL (see Comm. on Open Govt. FOIL–AO–12920 [2001] ). Given these opinions and the Department's own description of the capabilities of the program, we conclude that it is more than just a delivery system or data warehouse and, instead, falls within FOIL's broad definition of a record subject to disclosure (see Public Officers Law § 86[4]; Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 462, 849 N.Y.S.2d 489, 880 N.E.2d 10 [2007] ).
906, 912 N.Y.S.2d 573, 938 N.E.2d 1008 [2010] ).
[5] We must next consider whether the cited statutory exemption applies. Relying upon Public Officers Law § 87(2)(i), the Department argues that the security of its software program would be jeopardized by disclosure because it could be used to generate false letters or forms which, if sent to taxpayers, could lead them to disclose confidential information. In our view, however, neither the plain language of the exemption, its legislative history, nor the relevant advisory opinions support the Department's position.
[6][7] Public Officers Law § 87(2)(i) exempts material that, “if disclosed, would jeopardize the capacity of an agency or an entity that has shared information with an agency to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures.” On its face, the exemption is concerned with ensuring the security of information technology assets. The expressed legislative intent was to protect against the risks of electronic attack, including damage to the assets *247 themselves, interference with the performance of agency computers and programs, and the unauthorized access to an agency's electronic data (see Senate Introducer Mem. in Support, Bill Jacket, L. 2001, ch. 368, at 4–5; see also Comm. on Open Govt. FOIL–AO–13777 [2002]; Comm. on Open Govt. OML–AO–4292 [2006]; Comm. on Open Govt. FOIL–AO–16312 [2006] ). The Department raises no such concerns regarding the use of the software to breach or compromise its own information technology infrastructure, interfere with its own performance of its responsibilities or gain access to or manipulate information maintained by the Department. The Department's only argument, that the uses to which the software are put might be illegal or fraudulent, is, in our view, an overly broad interpretation of the exemption. This is especially so because an applicant's motive for seeking a record is generally irrelevant in determining whether documents are available under FOIL (see Matter of Scott, Sardano & Pomeranz v. Records Access Officer of City of Syracuse, 65 N.Y.2d 294, 296–297, 491 N.Y.S.2d 289, 480 N.E.2d 1071 [1985]; Matter of Schenectady County Socy. for the Prevention of Cruelty to Animals, Inc. v. Mills, 74 A.D.3d at 1420 n. 4, 904 N.Y.S.2d 512). In light of the narrow construction afforded the statutory exemptions (see Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d at 462, 849 N.Y.S.2d 489, 880 N.E.2d 10; Matter of Carnevale v. City of Albany, 68 A.D.3d at 1292, 891 N.Y.S.2d 495), and the Department's failure to articulate a legitimate concern covered by the exemption at issue, we conclude that the Department failed to meet its burden of demonstrating the applicability of the exemption.
Based on our conclusion, petitioner's arguments regarding the denial of his motion to renew and the conditions the Department sought to impose on his access to the software are academic, and we remit petitioner's request for counsel fees to Supreme Court for determination (see Matter of New York State Defenders Assn. v. New York State Police, 87 A.D.3d 193, 197, 927 N.Y.S.2d 423 [2011] ).
ORDERED that the judgment is reversed, on the law, without costs, motion granted, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision.
ORDERED that the appeal from the order is dismissed, as academic, without costs.
N.Y.A.D. 3 Dept.,2011.
TJS of New York, Inc. v. 932 N.Y.S.2d 243, 2011 N.Y. Slip Op. 07780
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