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July 22, 1998

Ms. Linda M. Rontey
16790 Rt. 22
Stephentown, NY 12168

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 Ms. Rontey:

I have received your letter of July 6, which reached this office on July 13.

According to your letter, you were recently granted access to records by the Berlin
Central School District. Due to the financial burden that would be imposed if you sought
photocopies of the records, you asked to videotape them with your own video recorder,
which is "approximately a 5 inch cube, is battery powered, and is suspended from [your] neck
on a lanyard." Nevertheless, the District's Records Access Officer indicated that the District's
attorney, in your words, "objected on the grounds that video taping allowed [you] to
circumvent the administrative charges that the district would recover if they did the copying
at $0.25 per sheet." Due to that objection, you have been inspecting the records and
transcribing portions of them. You added that "the process is time consuming, tedious and
error prone," and because the access officer supervises access, "the cost burden to the district
is much higher than it would have been had [you] been allowed to make [your] own video
copy."

From my perspective, there is no valid basis for precluding you from copying records
through the use of your own video camera. Section 87(2) of the Freedom of Information
Law specifies that accessible records must be made available for inspection and copying.
Sections 87(1)(b)(iii) and 89(3) indicate that the only fee that an agency can charge involves
its reproduction of records at the request of an applicant. Further, the regulations
promulgated by the Committee on Open Government, which have the force and effect of law
(21 NYCRR Part 1401), specify that no fee may be charged for the inspection of records.

Since no fee can be charged for inspecting records or for copying the contents of
records by hand, the District would not lose any proceeds by your video recording of the
records. Further, your use of the video camera, due to its size and independent power source,
would not involve any use of District resources or disruption of its activities different from
inspection of records.

In good faith, I note that it has been held that a rule prohibiting the use of one's own
photocopier has been found to be valid and reasonable when such use would cause disruption
[see Murtha v. Leonard, 210 AD2d 411 (1994)]. However, the situation that you described
is different, for there would be no use of the District's space or electricity, and there would
be no distinction in terms of the District's efforts in retrieving the records between the more
traditional inspection of records and the use of your video recorder. In short, I believe that
the prohibition of the use of your video recorder is unreasonable and inconsistent with law.

You also wrote that the District has not designated a person to determine appeals
made under the Freedom of Information Law. In this regard, when a person is denied access
to records, that person has the right to appeal. Section 89(4)(a) of the Freedom of
Information Law states in relevant part that:

"any person denied access to a record may within thirty days
appeal in writing such denial to the head, chief executive or
governing body of the entity, or the person therefor designated
by such head, chief executive, or governing body, who shall
within ten business days of the receipt of such appeal fully
explain in writing to the person requesting the record the
reasons for further denial, or provide access to the record
sought."

Further, the regulations promulgated by the Committee on which govern the
procedural aspects of the Law, state that:

"(a) The governing body of a public corporation or the head,
chief executive or governing body of other agencies shall hear
appeals or shall designate a person or body to hear appeals
regarding denial of access to records under the Freedom of
Information Law.

(b) Denial of access shall be in writing stating the reason
therefor and advising the person denied access of his or her
right to appeal to the person or body established to hear
appeals, and that person or body shall be identified by name,
title, business address and business telephone number. The
records access officer shall not be the appeals officer"
(§1401.7).

It is also noted that the state's highest court has held that a failure to inform a person
denied access to records of the right to appeal enables that person to seek judicial review of
a denial. Citing the Committee's regulations and the Freedom of Information Law, the Court
of Appeals in Barrett v. Morgenthau held that:

"[i]nasmuch as the District Attorney failed to advise petitioner
of the availability of an administrative appeal in the office (see,
21 NYCRR 1401.7[b]) and failed to demonstrate in the
proceeding that the procedures for such an appeal had, in fact,
even been established (see, Public Officers Law [section]
87[1][b], he cannot be heard to complain that petitioner failed
to exhaust his administrative remedies" [74 NY 2d 907, 909
(1989)].

In sum, an agency's records access officer has the duty individually, or in that person's
role of coordinating the response to a request, to inform a person denied access of the right
to appeal, and the Board of Education as the governing body has the obligation to determine
appeals or designate a person or body to do so within ten business days of the receipt of an
appeal.

In an effort to enhance compliance with and understanding of the Freedom of
Information Law, copies of this opinion will be forwarded to District officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Board of Education
Fran Zuke, Records Access Officer