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December 19, 1997






Mr. Frank L. Gennuso
85-C-0127
Otisville Correctional Facility
P.O. Box 8
Otisville, NY 10963

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. Gennuso:

I have received your letter of November 10 in which you complained
with respect to a fee of $1.00 per page imposed by the Department of Motor
Vehicles. The record sought involved the Department's subject matter list.
You have asked whether the Freedom of Information Law or the Vehicle and
Traffic Law is applicable under the circumstances.

In most instances, I believe that the Department of Motor Vehicles
may charge fees in accordance with the provisions of §202 of the Vehicle and
Traffic Law. In those cases, since the fees are prescribed by statute, they
would supersede and prevail over the provisions pertaining to fees appearing
in the Freedom of Information Law. However, as I understand §202 of the
Vehicle and Traffic Law, that provision would not serve as the basis for the
fee regarding a request for the Department's subject matter list. The
introductory language of §202 states that:

"Except in those cases in which it is provided
by law that no fee shall be charged, the fees for
searching the records of the department of
motor vehicles kept pursuant to the provisions
of this chapter and for furnishing copies of
documents in said department kept pursuant to
the provisions of this chapter shall be provided
in this section."

Pertinent in my view is the clause in the sentence quoted above that
refers to records of the Department of Motor Vehicles "kept pursuant to the
provisions of this chapter." The "chapter" is the Vehicle and Traffic Law.
The subject matter list in my opinion is kept pursuant to the Freedom of
Information Law. The reference to the list appears in §87(3) of the Freedom
of Information Law, which states that:

"Each agency shall maintain...

(c) a reasonably detailed current list by subject
matter, of all records in the possession of the
agency, whether or not available under this
article."

Based upon the foregoing, the requirement to maintain the subject matter list
emanates from the Freedom of Information Law, not the Vehicle and Traffic
Law. That being so, I believe that the Department could charge up to twenty-five cents per photocopy in response to a request for the subject matter list.

I hope that I have been of assistance.

Sincerely,



Robert J.
Freeman
Executive
Director

RJF:jm

cc: Alexandra Sussman