June 18, 1998
Mr. Wallace S. Nolen
Clinton Correctional Facility
P.O. Box 2001
Dannemora, NY 12929-2001
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
Dear Mr. Nolen:
I have received your letter of May 14 in which you sought guidance concerning the
calculation of the fees that may be assessed for the reproduction of electronic records by
county boards of elections.
In this regard, that issue was considered at length in Schulz v. New York State Board
of Elections (Supreme Court, Albany County, September 7, 1995), a copy of which is
attached. The court determined the issue by viewing both the Freedom of Information
Law and sections of the Election Law, stating that:
"The language of the Freedom of Information Law (Public Officers
Law, sec. 87(1)(b)(iii), which limits charges for requested public
records to æthe actual cost of reproducing' [emphasis added], is
elucidating. æActual cost' would reasonably seem to mean more finite,
direct and less inclusive than æ[indirect] cost', which is a concept as
infinite and expandable as the mind of man. æReproducing' a record
certainly does not include æproducing' a record in the first place - i.e.,
compiling the information from which the record is produced. The
purpose and intention of the Freedom of Information Law is to further
the concept of open government. For this reason charges for public
records must be kept to a minimum. In a sense the information
compiled by counties under election Law 5-602 and 5-604 is a part of
that concept and charges for that information must be kept to a
minimum so as to maximize access thereto."
Further, using the standard of "actual cost of reproduction", it was stated that:
"Where the record is a computerized record the charge shall be limited
to the cost of a diskette or other computerized tape and a reasonable
amount for the salary of the employee downloading said diskette or
tape during the time such diskette or tape is being downloaded."
I hope that I have been of assistance.
Robert J. Freeman