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November 10, 1998

Mr. Bob Butler
News 12 Long Island
One Media Crossways
Woodbury, NY 11797

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. Butler:

I have received your letter of October 20 in which you requested an advisory opinion
relating to the Freedom of Information Law.

Having sought expense records from the Hicksville Fire District, District staff "laid
out the papers...on a big table", which "sat in a relatively large room that serves as the
meeting place for the Department's Board of Fire Commissioners." You added that it is your
belief that "the room sits idle between meetings." When you attempted to use your own
portable copying machine to prepare photocopies of the records, you were given a copy of
the District's rules, which appear to preclude you and others from using their own copy
machines. Specifically, §4 of the District's rules provide that:

"(a) Records inspected by members of the public may be copied by those
persons, or may be copied for those persons, in the following manner:

(i) the records may be copied by the person inspecting the records
by his or her hand copying;
(ii) the records may be copied by the person inspecting the records
by copying the same by his or her typewriter; or

(iii) the records may be copied for the person inspecting the records
by Fire District personnel using Fire District mechanical
reproduction equipment."

In my opinion, if the facts as you presented them are accurate, the District's
prohibition concerning the use of portable copiers would be invalid.

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.

In this instance, if indeed the records were made available on a large table in a room
that is generally used only for meetings of the Board, it would appear that District would have
adequate facilities and space to enable individuals to use their own portable copying
equipment without disruption. As you suggested, the use of a portable copier would likely
involve no more space or disruption than the use of a typewriter, which is permitted by the
rules.

Lastly, I note that the statement of legislative intent appearing at the beginning of the
Freedom of Information Law indicates that "it is incumbent upon the state and its localities
to extend public accountability wherever and whenever feasible." In the context of your
inquiry, if the District has adequate space to enable you to use your equipment without
disruption of its operations, the direction provided by the statement of intent in my view
would require the District to permit you to use your copier.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Board of Fire Commissioners