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January 5, 1998


Mr. John Sheehan
Adjusters, Inc.
P.O. Box 604
Binghamton, NY 13902

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. Sheehan:

I have received your letter of November 24 and the correspondence
attached to it. In response to your requests for an accident report, a
representative of the Buffalo Police Department merely wrote "$10.00 fee."
You have questioned the propriety of the response.

In this regard, I believe that the response was inadequate and that the
reference to a fee of ten dollars for a copy of an accident report represents an
inconsistency with law.

From my perspective, unless a statute, an act of the State Legislature,
authorizes an agency to charge a different fee, an agency can charge no more
than twenty-five cents per photocopy up to nine by fourteen inches, nor can
it charge a fee for search or administrative costs.

By way of background, §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 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."

As such, 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, or any other fee, such as a fee for search.
In addition, it was 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. In addition, in a case in which you were involved,
Sheehan v. City of Syracuse [521 NYS 2d 207 (1987)], a fee in excess of
twenty-five cents per photocopy for certain records was established by an
ordinance, and the court found the ordinance to be invalid. More recently, a
provision of a county code authorizing a fee of twenty dollars for an accident
report was struck down, and it was determined that the agency could charge
no more than twenty-five cents per photocopy [Gordon Schotsky &
Rappaport v. Suffolk County, 221 AD 2d 339 (1996)].

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 states 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
section 1401.8).

As such, the Committee's regulations specify that no fee may be charged for
inspection of or search for records, except as otherwise prescribed by statute.
Therefore, absent statutory authority to do so, I do not believe that the
Department could validly charge a fee other than a maximum fee of twenty-five cents per photocopy.

Moreover, although compliance with the Freedom of Information Law
involves the use of public employees' time, 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, confusion has arisen on occasion concerning fees for accident
reports due perhaps to the provisions of §202 of the Vehicle and Traffic Law,
which was recently amended. Section 202(3) authorizes a copying fee of
$15.00 for accident reports obtained from the Department of Motor Vehicles
and one dollar per page for copies of other records. Section 202 also
authorizes the Department to collect certain fees for searching for records.
However, since the provisions of the Vehicle and Traffic Law pertain to
particular records in possession of the Department of Motor Vehicles only, in
my opinion, other agencies, such as municipal police or sheriff's departments,
cannot unilaterally adopt policy or regulations authorizing fees in excess of
twenty-five cents per photocopy or other fees without specific statutory
authority to do so.

In an effort to enhance compliance with and understanding of
applicable law, copies of this response will be forwarded to City of Buffalo
officials.

I hope that I have been of assistance.

Sincerely,



Robert J. Freeman
Executive Director

RJF:tt

cc: Records Access Officer, City of Buffalo Police Department
Catherine O'Hara, Office of Corporation Counsel