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December 8, 1997






Mr. Stuart F. Mesinger
President
Multiple Choice Real Estate Mapping Services
55 Bay Street - Suite 210
Glens Falls, NY 12801

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.

Dear Mr. Mesinger:

I have received your letter of October 31 in which you sought an
advisory opinion.

By way of brief background, you wrote that your firm specializes in
GIS applications and that you frequently acquire government maps and
databases that are maintained electronically. You indicated that the Director
of Real Property Tax Services in Chemung County informed you that the
County "had copyrighted its electronic parcel maps" and that they "would be
unavailable to [you] for [y]our purpose", which is to reproduce them in your
product. The Director's reason for his response involved, in your words, "the
cost to the county to create electronic maps and the county's desire to recoup
these costs."

You have asked "whether a county may prohibit the commercial
reproduction or resale of its tax parcel maps and/or real property data in a
product such as [y]ours by filing a copyright (or by any other mechanism)".

From my perspective, a copyright asserted by an agency with respect
to records that it produces cannot validly conflict with any provision of the
Freedom of Information Law. In this regard, I offer the following comments.

First, I know of no judicial decision that deals with the relationship
between the Freedom of Information Law and a work produced by a
governmental entity for which there is a copyright claim. In my opinion,
particularly in view of the expansive interpretations of the Freedom of
Information Law by the States's highest court, the Court of Appeals, a claim
of copyright regarding a government produced record would be superseded
by the Freedom of Information Law. In general, the status or interest of a
person seeking records is irrelevant to that person's rights of access, and the
recipient may do with a record disclosed under the Freedom of Information
Law as he or she sees fit [see M. Farbman & Sons v. NYC Health and Hosps.
Corp., 62 NY 2d 75 (1984) and Burke v. Yudelson, 368 NYS 2d 779, aff'd
51 AD 2d 673, 378 NYS 2d 165 (1976)]. Further, the fees for copies of
records made available under the Freedom of Information Law must be based
on the standards appearing in §87(1)(b)(iii), unless a different statute
authorizes a higher fee, and there would be none in this instance.

With respect to fees, §87(1)(b)(iii) of the Freedom of Information Law
stated until October 15, 1982, 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, 226 AD 2d 339 (1996); Sheehan v. City of Syracuse, 521 NYS 2d 207
(1987)].

Further, the specific language of the Freedom of Information Law and
the regulations promulgated by the Committee on Open Government indicate
that, absent statutory authority, an agency may charge fees only for the
reproduction of records. Section 87(1)(b) of the Freedom of Information
Law states:

"Each agency shall promulgate rules and
regulations in conformance with this
article...and pursuant to such general rules and
regulations as may be promulgated by the
committee on open government in conformity
with the provisions of this article, pertaining to
the availability of records and procedures to be
followed, including, but not limited to...

(iii) the fees for copies of
records which shall not exceed
twenty-five cents per
photocopy not in excess of
nine by fourteen inches, or the
actual cost of reproducing any
other record, except when a
different fee is otherwise
prescribed by statute."

The regulations promulgated by the Committee state in relevant part
that:

"Except when a different fee is otherwise
prescribed by statute:

(a) There shall be no fee charged for the
following:
(1) inspection of records;
(2) search for records; or
(3) any certification pursuant
to this Part" (21 NYCRR
1401.8)."

Based upon the foregoing, it is likely that a fee for reproducing
electronic information would involve the cost of computer time, plus the cost
of an information storage medium (i.e., a computer tape or disk) to which
data is transferred.

Although compliance with the Freedom of Information Law involves
the use of public employees' time and perhaps other costs, the Court of
Appeals has found that the Law is not intended to be given effect "on a cost-accounting basis", but rather that "Meeting the public's legitimate right of
access to information concerning government is fulfillment of a governmental
obligation, not the gift of, or waste of, public funds" [Doolan v. BOCES, 48
NY 2d 341, 347 (1979)].

Lastly, I note that the definition of the term "record" appearing in
§86(4) of the Freedom of Information Law includes specific reference to
computer tapes and discs, and it was held nearly two decades ago that
"[i]nformation is increasingly being stored in computers and access to such
data should not be restricted merely because it is not in printed form"
[Babigian v. Evans, 427 NYS 2d 688, 691 (1980); aff'd 97 AD 2d 992 (1983);
see also, Szikszay v. Buelow, 436 NYS 2d 558 (1981)]. Szikszay in fact
pertained to a request for assessment rolls maintained on computer tape by a
county department of real property services, and the court found that the
assessment roll was required to be disclosed, irrespective of the format (paper
or electronic) in which it was maintained and the applicant's intention to use
the data for commercial purposes. Another aspect of that decision involved
the fee charged for tax maps, and the court determined that the basis for the
fee must be, as indicated in the preceding commentary, the actual cost of
reproduction.

In an effort to enhance compliance with and understanding of the
Freedom of Information Law, a copy of this opinion will be forwarded to the
Real Property Tax Director.
I hope that I have been of assistance.

Sincerely,



Robert J. Freeman
Executive Director

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cc: Real Property Tax Director, Chemung County