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 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  ). 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  ). 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; Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 462, 849 N.Y.S.2d 489, 880 N.E.2d 10  ).
The court also found that the Department failed to meet its burden of demonstrating the applicability of the proffered statutory exemption.