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FOIL-AO-18965

From: Freeman, Robert (DOS)

Sent: Tuesday, September 04, 2012 2:40 PM
To:

Cc:

Subject: RE: Question on fees

Happy September to both:

I received a phone message from Amy and hope that the following will serve to clarify.  If it does not, certainly you may feel free to call.

The issue involves the ability of the Town to charge 25 cents per page for scanning paper documents and transmitting them via email in response to a FOIL request.

In this regard, first, neither the language of FOIL nor judicial precedent has focused on issues relating to scanning.  This office has advised that if it is no more labor intensive to scan than to photocopy, a court would likely require an agency to scan.  In that instance, if the scanned materials are emailed to an applicant and the task of scanning involved less than two hours, in our view, no fee may be assessed.  If, on the other hand, it is more labor intensive to scan than to photocopy, i.e., because the document is in  a bound volume, staples must be removed, redactions can be made prior to disclosure, it has been advised that an agency is not required to scan.  In that circumstance, if photocopies are made, the agency may charge up to 25 cents per photocopy up to 9 by 14 inches.

Second, the first clause of the provision dealing with fees for copies, §87(1)(b)(iii), deals with photocopies up to 9 by 14 inches and limits the fee to 25 cents per photocopy irrespective of the volume to be copied or the time involved in so doing.   The next clause refers to “other” records, those that are either larger than 9 by 14 or, more commonly today, are maintained electronically.   When copies of those records are requested, the agency may charge on the basis of the actual cost of reproduction.  From there, the provision cited by Amy, §87(1)c), offers guidance and indicates that if preparation of those records involves two hours or more, the agency may charge a fee based on the hourly salary of the lowest paid employee able to accomplish the task, plus the cost of the information storage media.  If that would be so, the agency is required to inform the applicant of the cost in advance of preparing the records.  If preparing the records would involve less than two hours, the only fee would involve the cost of the storage media, i.e., the cost of a tape or disk.

In the context of the request at issue, assuming that the records are accessible in their entirety, that they can be easily scanned and emailed, and that it took less than two hours to do so, I do not believe that a fee may be charged.

I hope that the foregoing serves to clarify and that I have been of assistance.