November 2012 - Reasonableness  

More frequently than ever, we are faced with the question of reasonableness in light of the evolving capabilities of our computer hardware and software in relation to agency obligations under the Freedom of Information Law. This article will set out the “reasonable effort” standard by which all agencies are required to respond to requests for records that are “reasonably described”, and outline three issues that arise via application of that standard to records maintained electronically.

The Reasonable Effort Standard
In 2008, the Legislature enacted a series of amendments to FOIL that codified judicial decisions requiring agencies to utilize the capabilities of its computer hardware and software in response to requests for access. While the statute still requires that records be “reasonably described,” §89(3)(a) states in part that “[w]hen an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so.” Additionally, agencies are required to receive and respond to requests via email when they have “reasonable means available”. §89(3)(b). Fee provisions were also expanded to allow limited circumstances in which an agency may charge for employee time spent querying records maintained electronically. §87(1)(c).

Issue: Volume in the Digital Age
In conjunction with the Government Law Center at Albany Law School, in 2009, we held a conference to discuss “Issues of Access in the Digital Age” and were struck by the growing dilemma of how best to deal with the capacity to identify large volumes of records that contain certain words or are sent between certain people, and the corresponding burden of reviewing such voluminous records in order to determine whether they must be disclosed in whole or in part.

We have advised that every law must be implemented in a manner that gives reasonable effect to its intent. In its statement of legislative intent, §84 states that “it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible.” Accordingly, when an agency identifies a large volume of records in response to a request (thousands of emails, for example), it should estimate its response time based on the amount of time necessary to review such records, keeping in mind equally pressing responsibilities of the agency, or in other words, indicating a date on which it would grant or deny access to the records sought potentially several months or perhaps more in the future. Although the law is clear that volume alone cannot serve as a basis for denial of access, agencies are severely burdened when a response of this nature does not encourage the applicant to modify the request.

The Appellant Division recently remanded a case to the trial court to determine, among other issues, whether the agency had the ability to retrieve or extract records “with reasonable effort”, or whether the agency’s efforts were essentially the creation of a new record, that which is not required by law. Weslowski v Vanderhoef, Appellate Division, Second Department, September 26, 2012.

Issue: Access to Personal Communication Accounts
Issues of access arise regarding communications that pertain to government business, but are sent via private communication channels, such as a gmail or yahoo email account.

Since its inception, FOIL has defined “record” in broad terms, including “any information kept, held, filed, produced or reproduced by, with or for an agency… in any physical form whatsoever…”. In 1987, the highest court in New York ruled that materials related to government business are "records" subject to the Freedom of Information Law, regardless of where they are received or stored and notwithstanding the time of their creation. See Capital Newspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246, 513 NYS2d 367 (1987) (involving the "Corning Papers" held by the City of Albany).

The issue of control over private email accounts has arisen in Albany County in the form of a Supreme Court decision involving access to emails of a former governor. Smith v New York State Office of the Attorney General, Supreme Court, Albany County, April 30, 2012. Clearly, emails pertaining to government business are “records” subject to the Freedom of Information Law, and their contents, not their location, serve to determine whether they are required to be made available. See, Capital Newspapers, supra. Less clear is the agency’s responsibility to recover the entire contents of the personal email account, or to access the personal email account in order to collect those that pertain to government business. In this case, the Smith court found that the agency has both the responsibility and the obligation to gain access to the private e-mail account of the former governor; however, we believe this may be an overly broad extension of the intent of the Freedom of Information Law.

FOIL is not as burdensome as those laws that govern “discovery,” or the exchange of information between parties involved in litigation. “E-discovery,” as it is now called, involves electronic records that are “material and necessary” to the litigation, not those that are “reasonably described”. While records of communications stored on back-up drives, for example, may be required to be disclosed to opposing counsel pursuant to a discovery order, they are not necessarily retrievable with reasonable effort, and an agency is not required to purchase software in order to access such records to comply with FOIL. See, County of Suffolk v Long Island Power Authority, Supreme Court, Suffolk County, April 3, 2012.

Some state laws require an agency to conduct a forensic examination of computers in response to FOIL requests. In Oregon, for example, the Nike Corporation forced the Mayor and the City Council President in Beaverton to give a third party consultant access to their personal computers for search purposes. See “Nike demands access to Beaverton files”, The Register-Guard, Eugene, August 22, 2005. In Texas, the Supreme Court will soon determine the issue of access to emails sent via the Bexar County Commissioner’s private account. See “Adkisson, lawyer cling to dangerous argument” San Antonio Express-News, August 10, 2012. Closer to home, we note a decision in which the Connecticut Freedom of Information Commission advised that use of private or home computers to conduct public business subjects such home computer to forensic examination; however, where the emails at issue had been obtained from another source, such examination was unnecessary. See Rowlenson v Fonfara, Docket #FIC 2005-408, June 14, 2006.

As a practical matter, and in an effort to avoid confusion, tension and litigation over this type of issue, we recommend that agencies provide agency-related email accounts for government business communications. In the alternative, we recommend that the government official or employee either copy the records access/management officer in on all government related correspondence or maintain separate email accounts for government and personal communications.

Issue: Definition of “Records” Subject to FOIL and the Ephemeral yet Public Nature of Social Network Communications
As mentioned previously, the definition of “record” has been broadly interpreted by the courts in New York and has long encompassed information maintained electronically.

Through similarly broad definitions of “public records”, many other state laws already address issues of access to text messages, tweets and Facebook comments. For example, see Revised Code of Washington 42.56.10 (3), “’Public record’ includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” See also 5 Illinois Compiled Statutes 140/2(c) “’Public records’ means all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information and all other documentary materials pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body.”

Similarly, and perhaps more fundamentally, we take care to note the broad definition of “record” within the Arts and Cultural Affairs Law from which the State Archives derives its authority to issue retention schedules. Whether it is metadata stored in conjunction with the creation and revision of a document, email, or audit data, the requirement to retain depends directly on the significance of the record. Those that are unimportant often may be disposed of quickly; others may be required to be retained for a period of years or permanently. Reasonableness governs, and those who take care to familiarize themselves with retention schedules may have fewer records to sort through when faced with the next FOIL request.

Many questions have been raised regarding access to records posted on state agency Facebook accounts and via Twitter. Our best advice, based on the ephemeral and public nature of information posted on a social network, is that to the extent that the record continues to exist, it is clearly public, and would be required to be disclosed upon request. Further, we note the public nature of such sites and are reminded of the Committee’s regulation “When an agency maintains requested records on the internet, a response shall inform a requester that the records are accessible via the internet and in printed form either on paper or other information storage medium.” (21 NYCRR 1401.5[b])

With respect to text messages, we surmise that to the extent that a text message continues to exist and can be recovered with reasonable effort, it would constitute a “record” subject to disclosure based on content.

In sum, for the business of government to proceed in the most efficient yet transparent manner, reasonableness must prevail. It is imperative that management and records retention issues be coordinated and resolved thoughtfully and systematically, and that consideration be given to public access requirements when indexing and storing records. Questions of control over the private communication accounts of public employees have arrived; we advise public employees and officials to conduct government business through electronic communication accounts that are either hosted by the agency or dedicated to government business only. Applicants and agencies alike are encouraged to handle FOIL requests reasonably, in the responsible and respectful manner in which we believe the law is intended to function.

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