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May 7, 1997

 

 

 

Mr. Kenneth W. Lovett
President
Virtual Information Systems, Inc.
609 Main Street
Stroudsburg, PA 18360

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the information presented in your correspondence,
unless otherwise indicated.

Dear Mr. Lovett:

As you are aware, I have received your letter of April 15 and
the materials related to it.

You wrote that your company "is in the process of performing
a map scanning project throughout New York", and that you have been
in contact with several counties to attempt to obtain permission to
scan their property tax maps. During a conversation with you, you
indicated that some agencies have "refused entry" and prohibited
you from using your equipment, a machine approximately one foot by
three feet. In particular, you questioned the response given by
Putnam County, which informed you that if it is determined that the
use of your scanning procedures would involve "too great an
inconvenience...and/or disruption" of the Office of the Real
Property Tax Services, the County would "exercise its right to deny
your company access to our facilities for such purposes."
Moreover, you were informed that "the County is not willing to
waive the per map charge of $5.00, irrespective of who does the
copying."

From my perspective, the foregoing raises several issues. In
this regard, I offer the following comments.

First, as a general matter, when records are accessible under
the Freedom of Information Law, they must be made available for
inspection and copying [see §87(2)]. If an applicant seeks to
inspect accessible records, no fee may be charged. Further, an
applicant may take notes or copy the contents of records on his or
her own.

In a case in which one of the issues involved the ability of
a member of the public to bring and use his own photocopier, the
court upheld regulations adopted by a village prohibiting the use
of personal photocopiers, holding that:

"This Court must balance the petitioner's
rights against the respondents' need to carry
out their responsibilities. Given the
voluminous requests for documents, respondents
were justified in establishing regulations
which would prevent unreasonable interference
with their other governmental duties" [Murtha
v. Leonard, Supreme Court, Nassau County, June
16, 1993; modified on other grounds, 210 AD2d
411 (1994)].

I note that the municipality in Murtha, the Village of Island Park,
had a small amount of space and limited staff. In my opinion, the
ability of an agency, such as Putnam County, to prohibit the use of
one's own copying or scanning equipment would be dependent on the
reasonableness of a prohibition in view of the physical
arrangements of the agency's premises and its staffing requirements
or needs. If the use of scanning equipment would not be
significantly inconvenient or disruptive, it is questionable
whether an agency could prohibit the use of the equipment,
especially in consideration of the intent of the Freedom of
Information Law to make records available "wherever and whenever
feasible" (see §84).

If it is determined that you should be able to use your own
equipment, it would seem that the only cost to an agency would
involve the use of electricity. I do not believe that a fee of
$5.00 per map or any similar fee could be justified if you make the
copies.

Second, assuming that there is a valid basis for prohibiting
the use of your equipment, the amount of the fee sought to be
charged by the County for copies of the maps may be inconsistent
with law. By way of background, until October of 1982,
§87(1)(b)(iii) of the Freedom of Information Law stated that an
agency could charge up to twenty-five cents per photocopy or the
actual cost of reproduction unless a different fee was prescribed
by "law". Chapter 73 of the Laws of 1982 replaced the word "law"
with the term "statute". As described in the Committee's fourth
annual report to the Governor and the Legislature of the Freedom of
Information Law, which was submitted in December of 1981 and which
recommended the amendment that is now law:

"The problem is that the term 'law' may
include regulations, local laws, or
ordinances, for example. As such, state
agencies by means of regulation or
municipalities by means of local law may and
in some instances have established fees in
excess of twenty-five cents per photocopy,
thereby resulting in constructive denials of
access. To remove this problem, the word
'law' should be replaced by 'statute',
thereby enabling an agency to charge more than
twenty-five cents only in situations in which
an act of the State Legislature, a statute, so
specifies."

Therefore, prior to October 15, 1982, a local law, an ordinance, or
a regulation for instance, establishing a search fee or a fee in
excess of twenty-five cents per photocopy or higher than the actual
cost of reproduction was valid. However, under the amendment, only
an act of the State Legislature, a statute, would in my view permit
the assessment of a fee higher than twenty-five cents per
photocopy, a fee that exceeds the actual cost of reproducing
records that cannot be photocopied, (i.e., electronic information),
or any other fee, such as a fee for search or overhead costs. In
addition, it has been confirmed judicially that fees inconsistent
with the Freedom of Information Law may be validly charged only
when the authority to do so is conferred by a statute [see Gandin,
Schotsky & Rappaport v. Suffolk County, 640 NYS 2d 214, ___ AD 2d
___ (1996); Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)].

In a decision that focused specifically on the fee charged by
a county for copying real property tax maps, it was held that the
county's fee of $4.00 per map established by a committee of the
county legislature was improper. In brief, the Court referred to
§87(1)(b)(iii) of the Freedom of Information Law, which, again,
permits an agency to charge a fee based on the actual cost of
reproduction when records are larger than nine by fourteen inches
or cannot be photocopied. It was also determined that the action
taken by a committee of the county legislature did not constitute
a statute and therefore could not establish a fee inconsistent with
the Freedom of Information Law. Further, in its analysis of the
actual cost, the Court found that:

"The copying expenses claimed by the County,
excluding map maintenance expense, total $1.15
per tax map copy. Petitioner argues, however,
that the actual cost of reproduction is $.25
per map or less. He bases his estimate on
economies of scale, citing retail prices
ranging from $1.40 for one map to an average
of $.64 per map for a quantity of 1,138 maps
(Petition, appendix, p. 1). He argues that
the actual cost is much less than even the
retail prices.

"Actual reproduction cost is defined in 21
NYCRR § 1401.8(c)(3) as 'average unit cost for
copying a record, excluding fixed costs of the
agency such as operator salaries.' I
interpret this phrase to require the agency to
average out the copying costs for each type of
record not covered by the $.25 per page fee
based on its experience over a period of time.
Undoubtedly, where the number of copies per
order increases for a particular record over a
period of time, the economies of scale will
result in a lower unit cost over that time
period" [Szikszay v. Buelow, 436 NYS 2d 558,
561-562 (1981)].

In short, if $5.00 does not represent the County's actual cost
of reproducing the maps, I believe that it must attempt to
determine the fee on the basis of that standard.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: John Carmody
George Michaud