b. Can the requester obtain a customized search of computer databases to fit particular needs

Presumably yes. Executive Order 734 (4)(c) permits the executive branch to charge actual costs associated with searching electronic databases as long as that cost is communicated to the requestor beforehand. Long before this Executive Order, in Birmingham News Co. v. Perry, 21 Media L. Rep. (BNA) 2125 (Cir. Ct. of Montgomery County, Ala., July 22, 1993), the trial judge ordered the Alabama Department of Public Safety to produce the requested motor vehicle records from its databases and "to create any new computer program required to comply with any such request." He also ordered The Birmingham News Company to pay the Department "the actual, reasonable cost incurred by the Department" to create such a computer program. Id. at 2125 (as of Sept. 13, 1997, access to MVRs is governed by 18 U.S.C. § 2721). But see Op. Att'y Gen. Ala. No. 2007-001, 2006 Ala. AG LEXIS 119 (Oct. 2, 2006) (agency did not have to produce information in the electronic form requested); Op. Att'y Gen. Ala. No. 88-00079 (Dec. 16, 1987) (diskette of personnel data requested; agency need not produce the data in diskette form nor compile or assimilate the information); Alabama Rules of Judicial Administration 33 appendix (UJS Computer Data Dissemination Requests-Procedures; "nonavailable data" — i.e., data "made to order" rather than in current retrievable format — is not subject to public disclosure, unless the Administrative Director of Courts ("ADC") determines that the requested "made to order" information possesses significant potential for enhancement of the judicial system).

As a general rule, public records laws do not require agencies to create records that do not exist. Pursuant to, or consistent with, this principle, the Alaska legislature in 1990 added AS 40.25.115, dealing with requests for "electronic services and products." This provision was an attempt to accommodate the interests of citizens seeking access to information more usefully tailored to their specific needs, and to balance these with the interests of agencies being asked to provide specially-tailored information.  Among these electronic services and products, as defined by AS 29.25.220(1)(A)-(G), are electronic manipulations of data contained in public records in order to tailor the data to the person's request or to develop a product that meets the person's request.

In contrast to the generally non-discretionary duty of public officials to provide public access to public records, a public agency may choose to provide or not provide "electronic services and products involving public records" to members of the public. The legislature has stated that agencies are "encouraged to make information available in usable electronic formats to the greatest extent feasible," but that doing so "may not take priority over the primary responsibilities of a public agency." AS 40.25.115(a). Agencies are allowed to charge an enhanced fee for electronic services and products, including customized searches of computer databases tailored to the requesters' needs. Specifically, the fee for electronic services and products must be based on recovery of the actual incremental costs of providing them, but may also include a "reasonable portion of the cost associated with building and maintaining the information system of the public agency." These may be reduced or waived if the electronic services and products are to be used for a public purpose, including journalism and other categories, so long as fee reductions and waivers are uniformly applied among persons who are similarly situated. AS 40.25.115(b).

State regulations concerning electronic services and products are found at 2 AAC 96.400 -.470.  Among other things, they require a state agency providing electronic services and products to adopt procedures for handling requests, including fee schedules and procedures for negotiating any written agreements that may be required.  The agency must notify the requester of electronic services and products that any agreement for those services or products must contain a release of liability that the public agency is not liable for any harm or injury that a requester may suffer as a consequence of any inaccurate information the requester may obtain through the electronic service or product.  A state agency may contract with a private, public, or nonprofit entity to provide electronic services and products; any such contract must provide that the state retains ownership of public records, and that the state agency must ensure compliance with the Public Records Act, AS 40.25.110 - AS 40.25.220, regulations implementing it, and the state's records management program. State agencies must identify databases that undergo periodic or continuous updates.  2 AAC 96.400.

No Arizona statute or case addresses this issue.

Not as a matter of right. However, the custodian “may agree to summarize, compile, or tailor electronic data in a particular manner or medium and may agree to provide the data in an electronic format to which it is not readily convertible.” Ark. Code Ann. § 25-19-109(a)(1) (added by Act 1653 of 2001). Custodians are encouraged to do so when “the cost and time involved in complying with the requests are relatively minimal.” Id. § 25-19-109(a)(2).

Yes, but the agency may require the requester to bear the cost of producing the record if it is one produced only at otherwise regularly scheduled intervals or would require data compilation, extraction or programming to produce.  Cal. Gov't Code § 7922.575(b). An agency, however, is not required to reconstruct a record in an electronic format if the agency no longer has the record available in an electronic format. Cal. Gov't Code § 7922.580(a).  Nor is it required to disclose electronic records where "release would jeopardize or compromise the security or integrity of the original record or any proprietary software in which it is maintained." Cal. Gov't Code § 7922.580(c).

The California Supreme Court has recognized that where feasible an agency may be required to produce electronic information in a non-native format to facilitate redaction and anonymizing to protect privacy interests even if the native format in which the data is held would not facilitate such functions. In other words, in certain circumstances, an agency may be required to create a record with responsive information where the burden of doing so is not outweighed by the interests in disclosure. See ACLU v. Superior Court, 3 Cal. 5th 1032, 1047, 221 Cal. Rptr. 3d 832, 400 P.3d 432 (2017).

Yes, however if the state or any of its agencies, institutions, or political subdivisions has performed a manipulation of data, so as to generate a record in a form not used by the state or by said agency, institution or political subdivision, a reasonable fee may be charged to the person making the request. Colo. Rev. Stat. § 24-72-205(3).

If an agency has the information sought within its database, it must provide that information in the form requested if the requester is willing to pay the cost of developing any new software to do so. In Hartford Courant Co. v. FOIC, 261 Conn. 86, 801 A.2d 759 (2002), the plaintiff newspaper requested an electronic copy of all adult criminal history records minus any exempt information from the department of public safety. The department argued that complying with the request would require it to develop a new computer program and create new records; the Connecticut Supreme Court found that because the department was in possession of the information requested and the plaintiff was willing to bear the extra cost of extracting the nonexempt data, the request was not outside the scope of FOIA. Id. at 95; see also Maher v. FOIC, 192 Conn. 310, 472 A.2d 321 (1984).

A public body must make "reasonable efforts" to search for records in electronic form or format, except when the efforts would significantly interfere with the operation of the public body's automated information system. D.C. Code Ann. § 2-532(a-2). "Reasonable efforts" means that a public body shall not be required to expend more than 8 hours of personnel time to reprogram or reformat records. Id. § 2-532(f)(1).

Access to computerized records is generally provided through the use of programs used by the agency. Access by the use of a specially designed program prepared by or at the expense of the applicant may be permitted in the discretion of the agency. See Seigle, 422 So. 2d at 66. If the agency refuses to permit access in this manner, the circuit court may permit such access where: (a) available programs do not access all of the public records stored in the computer’s data banks; or the information in the computer accessible by the use of available programs would include exempt information necessitating a special program to delete such exempt items; or (3) for any reason the format in which the information is proffered does not fairly and meaningfully represent the records; or (4) the court determines other exceptional circumstances exist warranting this special remedy. Id. at 66-67.

Yes.  An agency shall not refuse to produce electronic records, data, or data fields on the grounds that exporting data or redaction of exempted information will require inputting range, search, filter, report parameters, or similar commands or instructions into an agency’s computer system so long as such commands or instructions can be executed using existing computer programs that the agency uses in the ordinary course of business to access, support, or otherwise manage the records or data.  O.C.G.A. § 50-18-71(f).

There is no provision in the Act or relevant case law relating to custom searches.

In theory, a requester may obtain a customized search. However, “a public agency is not required to reprogram a computer system to provide enhanced access.” Ind. Code § 5-14-3-6(d).

Yes, but the requester must pay the actual cost of serving for, retrieving and compiling the requested record of not more than $15 per hour after the first hour. 1 M.R.S.A. § 408-A(8)(B).

The PIA does not create an obligation for an agency to create records to satisfy a PIA request.  § 4-205(c)(4)(iii).  However, if an agency has staff who routinely perform the type of data extraction requested and does not have to resort to expertise outside its staff’s capabilities, then it would be obligated to perform the search. Comptroller of the Treasury v. Immanuel, 216 Md. App. 259, 271 (2014); see also PIA Manual, at 2-3.

Custodians may, but are not required to, create new records to respond to a request. Guide to Mass. Pub. Recs. Law at 8 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf.

There are no decisions regarding whether a requester can obtain a customized search of computer databases to fit its particular needs. A computerized database is, however, a writing.  For example, an insurance database maintained by Department of State, which contained names, addresses, vehicle ID numbers, registration and insurance audit information was a writing and therefore a public record subject to disclosure under FOIA. However, the individual seeking the information must still pay the fee associated with obtaining the file. See Ellison v. Dep't of State, 320 Mich. App. 169 (2017).

There is no prohibition against requesting data that requires a customized search. However, if the requester seeks a copy of the data, the requester may be charged for the costs of "searching for and retrieving" that data. Minn. Stat. § 13.03, subd. 3(c). In addition, if the data has commercial value and "is a substantial and discrete portion of or an entire formula, pattern, compilation, program, device, method, technique, process, database, or system," the agency may charge a reasonable fee for the information. Such a fee must "be clearly demonstrated by the government entity to relate to the actual development costs of the information." Minn. Stat. § 13.03, subd. 3(d).

Records must be available for "inspection" and public bodies must "ensure reasonable access to records electronically maintained." § 25-61-2. See also §25-61-10(1).

Customized searches of computer databases are authorized, but not mandated, by the statute. See Mo.Rev.Stat. § 610.029.

Yes.

Yes, for those agencies whose records are available through Nebraska.gov.

No. However, computer software can generate public records which are deemed to exist so long as a computer is already programmed to generate these records.

No, RSA 91-A:4,VII states: “Nothing in this chapter shall be construed to require a public body or agency to compile, cross-reference, or assemble information into a form in which it is not already kept or reported by that body or agency.”  See Hawkins v. N.H. Dep't of Health and Human Services, 147 N.H. 376 (2001).

Generally, yes, as long as the customized search appropriately identifies the information sought and the custodian does not have to make subjective judgments to determine the nature of the information covered by the request and is performing a search, not research.  The definition of a government record includes “information stored or maintained electronically.” N.J.S.A. 47:1A-1.1.  N.J.S.A. 47:1A-5(d) permits the imposition of a special service charge “if a request is for a record…(3) requiring a substantial amount of manipulation or programming of information technology.”

In Paff v. Galloway Township, 229 N.J. 340 (2017), the requestor sought specific fields of information (specifically, the sender, recipient, date and subject) in emails sent by the Township Clerk and Chief of Police over a two week period.  The requestor did not seek the emails themselves, only these specific fields of information.  The New Jersey Supreme Court found that these fields of information constituted government records under OPRA (subject to any applicable exemptions/redactions).  The Court concluded that “[e]xtracting that kind of information requires ‘programming of information technology,’…a function the Legislature clearly envisioned the municipality performing, provided it has the means of doing so.  Id. at 354.

The Inspection of Public Records Act specifically provides that the Act should not be construed to require a public body to create a public record.  NMSA 1978 § 14-2-8(B) (2009).  Under the specific computer database statutes, § 14-3-15.1 and § 14-3-18, a customized search is discretionary.  The 2011 amendments specifically states a custodian “shall” provide a copy of a public record in electronic format if the public record is available in electronic format but is only required to provide the electronic record in the file format in which it existed at the time of the request.  NMSA 1978 § 14-2-9(B) (2011).

FOIL does not require an agency to prepare any record not possessed or maintained by it. N.Y. Pub. Off. Law. § 89(3) (McKinney 1988); Babigian v. Evans, 104 Misc.2d 140, 427 N.Y.S.2d 688 (1980), aff’d, 97 A.D.2d 992 (1st Dep’t 1983) (FOIL does not impose a duty upon a government office to compile statistics in response to an information request). The issue of FOIL disclosure of records maintained in agencies’ computerized databases continues to be a developing area of law, and presents an interesting tension between FOIL’s objective of promoting accountability through maximum disclosure of governmental records and an agency’s lack of a duty to “create” a record for public disclosure (i.e., through the reprogramming of an existing databases) in response to a FOIL request.

A foundational New York Court of Appeals case in this area is Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 880 N.E.2d 10, 849 N.Y.S.2d 489 (2007).  In Data Tree, the Court of Appeals held that “if the records are maintained electronically by an agency and are retrievable with reasonable effort, that agency is required to disclose the information.  In such situation, the agency is merely retrieving the electronic data that it has already compiled.”  In that case, questions of fact existed as to whether disclosure of electronic documents could be accomplished by merely retrieving information already maintained electronically or would require the creation of a new record. For cases holdings stemming from Data Tree see Matter of N.Y. Comm. for Occupational Safety & Health v. Bloomberg, 72 A.D.3d 153, 161, 892 N.Y.S.2d 377, 382 (1st Dep’t 2010) (noting that the relevant  question is whether the computer manipulation constitutes a simple manipulation of the computer necessary to transfer existing records or whether it constitutes creation of a new document);  In Re New York Comm., 72 A.D.3d 153, 892 N.Y.S.2d 377 (1st Dep’t 2010) (holding that New York Committee for Occupational Safety and Health’s request for all 2006 records transmitted to the City of New York be remanded to the Supreme Court for a hearing to determine whether City must produce electronically stored documents and whether producing hard copy documents creates an undue burden); Hearst Corp. v. Office of State Comptroller, 24 Misc.3d 611, 882 N.Y.S.2d 862 (N.Y. Sup. 2009) (held, disclosure of an electronic spreadsheet which would replace social security numbers with unique identifiers would require State Comptroller to create new records, which is not required under FOIL, but also that the State failed to demonstrate that data in tables that use social security numbers as their primary key is not retrievable through “a simple manipulation of the computer”).

Although this continues to be an evolving issue, the 2008 amendments are now controlling. For cases prior to the amendments and the Data Tree decision see:

Locator Serv. Grp., Ltd. v. Suffolk Cnty. Comptroller, 40 A.D.3d 760, 836 N.Y.S.2d 223 (2d Dep’t 2007) (disclosure of list of all un-negotiated checks greater than $1,000 and copies of the computer screen showing the payee’s names and addresses for those specific checks did not require the country to create a new record, because in order to access the information sought, county would only be performing queries within its database and utilizing existing software).

NYPIRG v. Cohen, 188 Misc.2d 658, 663 (N.Y. Cty. Sup. Ct., 2001)

“The [agency’s] computers, as aforesaid, contain a great deal of information. To sustain respondents’ positions would mean that any time the computer is programmed to provide less than all the information stored therein, a new record would have been prepared. Here, all that is involved is that [the agency] is being asked to provide less than all of the available information. I find that in providing such limited information [the agency] is providing data from records ‘possessed or maintained’ by it. There is no reason to differentiate between data redacted by a computer and data redacted manually insofar as whether or not the redacted information is a record ‘possessed or maintained’ by the agency.”

Gabriels v. Curiale, 216 A.D.2d 850, 851 (3d Dep’t 1995) (citations omitted)

“However, because the Department has no need to maintain records which only display the particular information petitioner seeks, it does not have an automated or ‘batch’ program to routinely compile and print out these records in a single report as it does with some of its other unattended recordkeeping. To accommodate petitioner’s request, it is necessary for a computer operator to create new records through a ‘computer run’, i.e., a search of the online databases, accomplished by entering petitioner’s criteria. We, therefore, agree with respondent that FOIL does not require the Department to create these new records, nor develop a program to accomplish this task for the purpose of complying with petitioner’s request.”

The Public Records Law requires every public agency to create an index of computer databases compiled or created by the agency. The indices of databases are public records. The Public Records Law provides that a public agency need not “respond to a request for a copy of a public record by creating or compiling a record that does not exist.” G.S. § 132-6.2(e). If an agency agrees to create or compile such a record, however, it may negotiate a “reasonable charge for the service.” G.S. § 132-6.2(e).

A public entity is not required to provide a requester with access to a computer terminal. N.D.C.C. § 44-04-18(4).

A public entity may establish procedures for providing access from an outside location to any computer database or electronically filed or stored information maintained by the entity. N.D.C.C. § 44-04-18(5). The procedures must address the measures that are necessary to maintain the confidentiality of information protected by federal or state law, and a reasonable fee may be charged. N.D.C.C. § 44-04-18(5).

The Public Records Act does not compel a public office “to do research or to identify records containing selected information.” State ex rel. Shaughnessy v. Cleveland, 149 Ohio St. 3d 612, 614, 76 N.E.3d 1171, 1174, 2016-Ohio-8447, ¶ 10; but see, State ex rel. Bott Law Grp., L.L.C. v. Ohio Dep't of Nat. Res., (Ohio App. 10th Dist. No. 12AP-448) 2013-Ohio-5219, ¶ 51 (Nov. 26, 2013)(ordering public office to “search its journal for responsive e-mail correspondence that were deleted in violation of its records retention policy, and … make reasonable efforts to identify all responsive records stored on the shared servers or on the personal computers").

The requester should be entitled to conduct a search of electronic records using “the machines and equipment necessary to reproduce the records and information in a readable form” under Ohio Rev. Code § 9.01.

Where each requested digital tax map "is a new image that the computer creates when the requester inputs search terms," the requester may obtain paper copies "by inputting search terms into the computer at the engineer's office and paying the cost for each document printed." State ex rel. Gambill v. Opperman, 135 Ohio St.3d 298, 301-302, 986 N.E.2d 931, 935, 2013-Ohio-761, ¶ 16.

It was held in Transportation Information Services, Inc. v. State ex rel. Oklahoma Department of Corrections, that the corporation, which was in the business of providing employment and criminal background information on potential employees, was entitled to seven years of public offender records on magnetic tape from the Department of Corrections (DOC) under the Act where the corporation was prepared at all times to pay reasonable costs incurred by DOC in assembling the information; the request did not involve excessive disruption of DOC's essential functions; and the information could be segregated as requested. 1998 OK 108, 970 P.2d 166.

 

Yes, qualified. The Attorney General has taken the position that such customized searches must be undertaken to retrieve data if the searches can be done with existing software and computer programs. Attorney General Manual, § I.C.1.

No. In responding to a request under the Law, an agency is not required to create a document that does not exist. See 65 Pa. Stat. Ann. § 67.705 (“[A]n agency shall not be required to create a record which does not currently exist or to compile, maintain, format or organize a record in a manner in which the agency does not currently compile, maintain, format or organize the record.”).

Nonetheless, some agencies have allowed such requests.

The APRA does not require “a public body to reorganize, consolidate, or compile data not maintained by the public body in the form requested at the time the request to inspect the public records was made except to the extent that such records are in an electronic format and the public body would not be unduly burdened in providing such data.”  R.I. Gen. Laws § 38-2-3(h).

Yes, but the agency may charge for the service of searching for the records, and this could include the cost of writing a program for the customized search. Custodians of public records are under no obligation to perform custom searches or to create records. See S.C. Code Ann. §  30-4-30(b).

No, but records may be “maintained . . . in any searchable and reproducible electronic or other format . . .” suggesting that this will be allowed in practice. SDCL §1-27-4.

The Act has no provision to allow a requester to obtain a customized search of computer databases to accommodate particular needs.

The Supreme Court held that if there is information that is stored on computer but not in the format desired by the requester, the agency is required to provide the information in the format requested. The Tennessean v. Electric Power Board of Nashville, 979 S.W. 2d 297 (Tenn. 1998) (electric power board was required to disclose its customer names, addresses, and telephone numbers as a public record, even though it did not have a list of only that information.). This 1998 decision probably overturns Seaton v. Johnson, 20 TAM 8-20 (Tenn. Ct. App. Jan. 27, 1995) (stating that the Act does not require that state conduct a computer search for a particular type of record).

Read together, sections 552.228 and 552.231 appear to allow a requestor to obtain information through customized searches. Section 552.228 provides the requestor with the option of obtaining information in an electronic or magnetic medium, with some restrictions. See supra 5(a). Section 552.231 provides that the governmental body shall timely provide to the requestor a written statement, generally within 20 days after receipt of the request, if that body determines: (1) that responding to the request will require programming or manipulation of data, and (2) that (A) compliance is not feasible or will result in substantial interference with ongoing operations, or (B) the information could be made available only at a cost that covers the programming and manipulation of data. The written statement must include, among other things specified in that provision, a statement of the estimated cost and time of providing the information in the requested form. Tex. Gov’t Code § 552.231. Upon properly notifying the requestor, the governmental body is under no further obligation to provide the information until the requestor states in writing that it wants the governmental body to proceed with the request under the terms specified by the governmental body or other terms to which the requestor and the governmental body agree. Tex. Gov’t Code § 552.231(d).

Although GRAMA does not specifically address this issue, it is likely that a requester could obtain a customized search of computer databases as long as the requester identifies the records sought with reasonable specificity and pays for the search costs. See Utah Code § 63G-2-201(7); see also Maese v. Davis Cty., 273 P.3d 949, 952 (Utah 2012) (concluding that county met GRAMA obligations by providing requester access to database to search and copy requested property records).

There is no statutory authority for the requester to obtain a customized search of computer databases to fit particular needs.  The Vermont Supreme Court recently recognized, however, that “[a]s a practical matter, the steps required to reasonably compile requested public records” may include “centralized electronic searches of agency records in an email system, document management application, or database[s] within  specified parameters” and that such searches “may be the primary or even exclusive means of compiling responsive public records.”  Toensing v. AG of Vt., 2017 VT 99, ¶ 26, 178 A.3d 1000, 1009-10 (Vt. 2017).

Public bodies must produce nonexempt computer records but are not required to use a format not regularly utilized by the producing body. They must make reasonable efforts to produce information as agreed to with the requester at a reasonable cost. Excision of exempt data fields or conversion from one available format to another do not constitute the otherwise prohibited creation of a new record. Va. Code Ann. § 2.2-3704.G.  The statute implies that a requester may identify desired data fields.  Note that this Code section reflects the Act’s inconsistent use of the word “exempt” where it likely intends to refer to the discretionary “exclusion” of information.

Yes, under a statute passed in 2017 that also allows the agency to charge a fee for such customized services. RCW 42.56.120(3).

There are no state Supreme Court cases addressing whether someone can obtain a customized search, and agencies willingness to do so reportedly varies. Many West Virginia public bodies search their computer databases and provide printouts of requested information.   To be consistent with the broad disclosure mandate of the FOIA, public bodies should provide FOIA requesters with records that exist in magnetic, electronic or computer formats, and requesters should be entitled to have an agency search its databases to extract requested  information. It is impossible to distinguish between an agency search through file cabinets for paper records and a computer search for records – except that computer searches are likely to take less time and copying electronic format records to a disc would in most cases be less costly than duplication of paper records using a copy machine.

Consistent with this perspective, in Appalachian Mountain Advocate, Inc. v. West Virginia Department of Environmental Protection, Civ. Action No. 14-C-985 (Kanawha County Cir. Ct., Oct. 20, 2014) (Slip Opinion) the Kanawha Circuit Court agreed that a public body isn't required to create a new public record, citing, Affiliated Const. Trade Found. v. Regional Jail & Correctional Facility Auth., 200 W. Va. 621, 625 (1997). The court emphasized, however, that "neither the computer program used to search an electronic database, nor the results of a search of an electronic database constitute the creation of a new public record. The opinion relied upon Schladetsch v. U.S. Dept. of H.U.D. and quoted it at length:

The FOIA applies equally to all agency records, regardless of format. “Although accessing information from computers may involve a somewhat different process than locating and retrieving manually-stored records, these differences may not be used to circumvent the full disclosure policies of the FOIA . . . The fact that the agency may have to search numerous records to comply with the request and that the net result of complying with the request will be a document the agency did not previously possess is not unusual in FOIA cases, nor does this preclude the applicability of the Act.”

Civ. No. 99-0175, 2000 WL 33372125 at 3 (D.D.C. Apr. 4, 2000), citing, Yeager v. DEA, 678 F.2d 315, 321 (D.C.Cir.1982); Disabled Officer's Assn. v. Rumsfeld, 428 F.Supp. 454, 456 (D.D.C.1977), aff'd, 574 F.2d 636 (D.C.Cir.1978).)

W.S.§16-4-0202(d)(iii) states: “An agency shall not be required to compile data, extract data or create a new document to comply with an electronic record request if doing so would impair the agency’s ability to discharge its duties.”