The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6820 October 11, 1994 FREEDOM OF INFORMATION ACT: Duty of agencies participating in the STATewide Information System to provide information contributed by other agencies The records maintained by the Department of State Police on the STATIS computer system meet the definition of a "public record" set forth in section 2(c) of the Freedom of Information Act (FOIA). Therefore, that Department must search the STATIS computer system when it responds to a FOIA request. It must also allow the examination of or produce copies of all documents it finds, unless the records sought fall within one or more of the specific exemptions set forth in section 13 of the FOIA. Although participating law enforcement agencies other than the Department of State Police have remote computer terminals, which allow them access to the STATIS computer, those records are not "writings" "in the possession of" those agencies within the meaning of the FOIA, section 2(c)and (e), unless those records are saved to a computer storage device or printed by the participating agency. Thus, law enforcement agencies other than the Department of State Police are not obligated under the FOIA to search the STATIS system for records except for those records which they contributed to that system. Colonel Michael Robinson Director Department of State Police 714 S. Harrison Road East Lansing, Michigan 48223 You have asked whether an agency participating in the STATewide Information System (STATIS) has any obligation to search beyond the records it has contributed to the system when responding to a request made pursuant to the Freedom of Information Act (FOIA), 1976 PA 442, MCL 15.231 et seq; MSA 4.1801(1) et seg. I am advised that STATIS is a statewide computerized system for the sharing of criminal investigatory information among contributing agencies. All information in the system is maintained in a computer mainframe operated by the Michigan State Police. Any state, federal, county, or local law enforcement agency in Michigan that agrees to cooperate with the format and rules established for the system may contribute or record information on and access the mainframe computer records. By written agreement, information within the system is considered the property of the agency that contributed it, and each agency determines which information will be shared with other participating agencies. Information is classified under one of four access restrictions in the STATIS Operation Manual: 1) OPEN: Information of this type can be disseminated without further authorization from the contributing agency. 2) UPON REQUEST: Information of this type may only be released upon a specific inquiry from another law enforcement agency. The contributing agency will be notified of the name of the agency and access officer who made the request and what information was disseminated. 3) REFER INQUIRIES TO CONTRIBUTOR: Information of this type will not be released. However, the requesting agency will be told that there is information in the system, and will be given the name, address and phone number of the contributing agency to call for details. 4) NO REFERRAL: Information of this type will not be released and the requesting agency will not be told that information exists in the system. However, the contributing agency will be notified of the inquiry and may at their discretion contact the requesting agency. Generally, this category should only be used for extremely sensitive investigations. When searching on the STATIS system, an agency first conducts an "inquiry," in which the terminal operator enters a search term, such as a name of an individual. In response to that inquiry, the searching agency receives on its terminal screen a list of possible "matches" which fall within access categories 1, 2, or 3 above. If a report is classified in access levels 1 or 2, the report can be accessed immediately through STATIS and will appear upon the terminal screen. If a report is classified as level 3, a message will appear on the terminal screen indicating that the report cannot be accessed through STATIS, and that the requesting agency should contact the contributing agency for further information. Reports classified in the fourth level of access restriction, however, do not appear at all in response to inquiries, but the contributing agency is notified of the inquiry and may, in its discretion, contact the inquirying agency regarding the STATIS information. Under the FOIA, supra, a public body is required to provide access to all of its "public records" except those specifically exempted from disclosure. Your question, in essence, is whether information stored by multiple agencies in one common computerized system becomes a "public record" of every public body having a right of access to that computerized system. The answer to this question turns upon the definition of "public record" as used in the FOIA. "Public record" is defined at section 2(c) of the FOIA, supra, as follows: "Public record" means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. The term "writing" is in turn defined in section 2(e) of the FOIA, supra, as follows: "Writing" means handwriting, typewriting, printing, photostating, photographing, photocopying, and every other means of recording, and includes letters, words, pictures, sounds, or symbols, or combinations thereof, and papers, maps, magnetic or paper tapes, photographic films or prints, microfilm, microfiche, magnetic or punched cards, discs, drums, or other means of recording or retaining meaningful content. [Emphasis added.] Pursuant to the foregoing, it is clear that all of the STATIS information electronically recorded and maintained on the Department of State Police computer constitutes a "writing" since it is information recorded on magnetic disks and/or tapes. (1) This conclusion applies even to information classified under access level 4 since such information contains meaningful content even though, pursuant to written agreement and the STATIS system design, it cannot ordinarily be seen on an inquiry terminal, since it exists on and is discernible by the Department as recorded information of some kind on the mainframe. Additionally, it is clear that all of such "writings" maintained on the STATIS system are "in the possession of, or retained by" the Department of State Police "in the performance of an official function." FOIA, section 2(c), supra. Thus, they are "public records" of the Department of State Police, irrespective of what agency may have contributed those records to the system; the Department is obligated to search those records in response to a FOIA request and to respond to such a request in conformity with the requirements of that Act. There remains, however, the question of whether and to what extent participating agencies other than the Department of State Police are required by the FOIA to search records on the STATIS computer. The answer to this question turns upon whether the agency created and submitted the particular record or whether it merely has access to that record through the use of its STATIS terminal. Under the terms of the written agreement establishing the STATIS system, it is clear that any record contributed to the system continues to be "owned" and controlled by the agency contributing that record. That agency, for example, has the sole authority to determine or to alter the classification of each record it contributes and, thus, to control the extent to which the record will be made available even to other law enforcement agencies participating in the system. For this reason, each such record continues to be a "public record" of the contributing agency. FOIA, section 2(c). This would be true even if the agency does not create or retain a copy of the record in its own files or computer systems. It does not follow, however, that a participating agency has a duty under the FOIA to search all of the records contained in the STATIS system merely because the agency has a right of online access to the STATIS mainframe. As previously noted, a prerequisite for information to be classified as a "public record" subject to a FOIA search is that it be a "writing" - i.e., it must constitute a recording or some other retention of the meaningful content of information. Information which is accessed from the STATIS mainframe and viewed on the screen of a remote terminal is, at that point, merely a temporary electronic representation of the record; no meaningful content has been recorded or retained at the remote terminal. Unless the inquiring agency also saves such information to a disk or other storage device or prints it out prior to disconnecting from the mainframe, no meaningful information is retained or recorded by that agency. Thus, such an inquiry from a remote terminal, by itself, does not generate a "writing" as defined by the FOIA, section 2(e); therefore, no public record has been created which is subject to the FOIA unless the participating agency saves the information from STATIS in some permanent form. Additionally, the mere fact that a public body has the ability to access a computerized database and generate a "writing" does not result in a duty to do so under the FOIA. To conclude otherwise would effectively result in making any government agency responsible under the FOIA for searching and producing the records contained in any computerized database which may be accessed online in the course of an agency's official functioning, even those of commercial computer information networks and computer bulletin boards. The Michigan Court of Appeals has concluded, based upon the decision of the United States Supreme Court in Forsham v Harris, 445 US 169; 100 S Ct 552; 63 L Ed 2d 293 (1980), construing the federal FOIA; 5 USC 552, that the Michigan FOIA applies to records which have been obtained, not to records which could have been obtained. Hoffman, supra, 137 Mich App, at 337. Thus, the mere right of and ease of access to a STATIS computerized record does not require the search and production of records contributed by other participating agencies. It is my opinion, therefore, that the records maintained by the Department of State Police on the STATIS computer system meet the definition of a "public record" set forth in section 2(c) of the Freedom of Information Act (FOIA). Therefore, that Department must search the STATIS computer system when it responds to a FOIA request. It must also allow the examination of or produce copies of all documents it finds, unless the records sought fall within one or more of the specific exemptions set forth in section 13 of the FOIA. It is my further opinion that, although participating law enforcement agencies other than the Department of State Police have remote computer terminals, which allow them access to the STATIS computer, those records are not "writings" "in the possession of" those agencies within the meaning of the FOIA, section 2(c) and (e), unless those records are saved to a computer storage device or printed by the participating agency. Thus, law enforcement agencies other than the Department of State Police are not obligated under the FOIA to search the STATIS system for records except for those records which they contributed to that system. Frank J. Kelley Attorney General (1)