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October 27, 1998

 

 

Mr. Robert J. Spence
Office of Richard J. McCord, Esq.
The Financial Center at Mitchell Field
90 Merrick Avenue, 8th Floor
East Meadow, NY 11554

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. Spence:

I have received your letter of October 14, as well as the correspondence attached to
it.

You indicated that you represent Comps, Inc., which has requested "property photos
maintained by the New York City Department of Finance." The photos were taken from
1984 to 1989, and the Department indicated that it "has no available medium in which to
provide the photos that you have requested since these photos have never been converted to
digital images." Your correspondence indicates, however, that a different firm appears to
have been given the opportunity to copy the photos and has a complete file that it sells on CD
Rom. You have sought an advisory opinion in an effort to resolve the matter.

In this regard, I offer the following comments.

First, since your request was based upon 5 U.S.C. §552, I point out that that provision
is the federal Freedom of Information Act, which applies only to records maintained by
federal agencies. The applicable statute under the circumstances is the New York Freedom
of Information Law.

In brief, the Freedom of Information Law is based upon a presumption of access.
Stated differently, all records of an agency are available, except to the extent that records or
portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i)
of the Law. From my perspective, none of the grounds for denial would be pertinent, and the
Department has not suggested that the photos would not be accessible.

Second, since the Department does not have the ability to reproduce the photos in the
form or format of interest to your client, the issue appears to involve whether the firm has the
right to reproduce the photographs with its own equipment. While §87(2) of the Freedom
of Information Law states that accessible records must be made available for inspection and
copying, there is little decisional law that deals with the situation in which an applicant seeks
to use his or her own copying equipment to reproduce an agency's records.

Most analogous to the situation in my view is the decision rendered in Murtha v.
Leonard [210 AD 2d 411, 620 NYS 2d 101 (1994)]. In that case, a small village with limited
staff, space and facilities adopted rules prohibiting requesters from using their own
photocopiers, and it was held that the rules constituted "a valid and rational exercise of the
Village's authority under Public Officers Law §87(1)(b)" [id., 102]. In my opinion, the
decision was based upon the reasonableness of the rules in view of attendant facts and
circumstances. In situations in which an agency has sufficient resources to permit the use of
a personal photocopier or other reproduction equipment in a non-disruptive manner, it would
likely be found that a prohibition regarding the use of one's own copying equipment would
be invalid, particularly if an agency's rules or code provisions do not specifically prohibit the
use of those devices. In this instance, there is no indication in the correspondence that the
Department has adopted any rules pertaining to the use of copying equipment owned by a
person or firm on the Department's premises. In my view, assuming that the Department has
the physical space to enable the firm to reproduce the photos and that the use of that space
would not be disruptive to the Department's routine and necessary business, based on the
direction provided in Murtha, I believe that the Department would be obliged to permit your
client to reproduce the photos.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Gerald S. Koszer