eDiscovery Daily Blog

• December 5, 2011

The petitioner – in 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) – 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.  Some of the records, however, could not be reviewed without a copy of the Department’s Audit Framework Extension software, which the Department refused to provide.  The 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 and also denied the petitioner’s subsequent motion to renew.

The court determined that the term “record” was broadly defined as “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”.  However, the petitioner disagreed, “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”.

The court agreed with that argument, noting:

• “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.”
• “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”.
• “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”
• “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”

So, what do you think?  Should producing parties be required to produce specialized software to review produced records? Please share any comments you might have or if you’d like to know more about a particular topic.