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  April 2, 1999

 

Ms. Penny Wells LaValle
Director
County of Suffolk Real Property
Tax Service Agency
300 Center Drive
Riverhead, NY 11901-3398

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. LaValle:

I have received your transmittal of April 2 and the materials related to it. Among the
correspondence is a letter addressed to me on December 28 in which you sought an advisory
opinion concerning the Freedom of Information Law. As indicated by phone, and based upon
a review of our log of incoming correspondence, that letter, for reasons unknown, did not
reach this office. I hope that you will accept my apologies for the delay in response.

At issue is the fee that may be charged by Suffolk County for the disclosure of
compact disks containing GIS information. The Counsel to the County Legislature referred
to sections of the Suffolk County Code authorizing a flat "one time fee" for the duplication
of a database, and a similar fee for a set of books. He suggested that "...the GIS CD-ROM
fell within these pre-packaged database type items being provided to the public as
distinguished from the photocopying of individual records." He added that:

"The common law principle against municipal profit making
imposes a restriction on costs even for such packages in that
the charge cannot exceed the County cost for providing the
package or the item. In this case, given the tens of millions of
dollars that were spent on prepared the GIS system, a modest
fee did not seem to come even close to violating the common
law principle."
An Assistant County Attorney contended, however, that "the County is not permitted to
charge for a data disk anymore than the cost of the materials to produce the disk."

From my perspective, the view of the Assistant County Attorney is essentially
consistent with the Freedom of Information Law. In this regard, I offer the following
comments.

First, as you may be aware, the Freedom of Information Law pertains to agency
records and that §86(4) of the Freedom of Information Law defines the term "record"
expansively to include:

"any information kept, held, filed, produced, reproduced by,
with or for an agency or the state legislature, in any physical
form whatsoever including, but not limited to, reports,
statements, examinations, memoranda, opinions, folders, files,
books, manuals, pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer tapes or discs,
rules, regulations or codes."

Based upon the language quoted above, if information is maintained in some physical form,
it would in my opinion constitute a "record" subject to rights of access conferred by the Law.
Further, the definition of "record" includes specific reference to computer tapes and discs, and
it was held nearly twenty years ago that "[i]nformation is increasingly being stored in
computers and access to such data should not be restricted merely because it is not in printed
form" [Babigian v. Evans, 427 NYS 2d 688, 691 (1980); aff'd 97 AD 2d 992 (1983); see also,
Szikszay v. Buelow, 436 NYS 2d 558 (1981)].

Second, by way of background with respect to fees, §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 or the actual cost of reproduction 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."

Therefore, 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, (i.e., electronic information), or any other fee, such as a fee for
search or overhead costs. In addition, it was confirmed judicially more than a decade ago 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 [see Sheehan v. City of Syracuse, 521 NYS 2d
207 (1987)]. The most recent decision on the matter involved a provision in the Suffolk
County Code that established a fee of twenty dollars for photocopies of police reports
[Gandin, Schotsky & Rappaport v. Suffolk County, 640 NYS2d 214, 226 AD2d 339 (1996)].
The Appellate Division unanimously determined that the provision in the County Code was
invalid. In short, it was determined an enactment of a municipal body is not a statute, and the
County was restricted to charging a fee of twenty-five cents per photocopy for the records
at issue.

In my view, while a compact disk might be likened to a database, the fee that could
be assessed for reproducing either must be based upon the actual cost of reproduction. If the
County Code authorizes a "one time fee" for the duplication of a database, or if a similar fee
is established relative to a compact disk, unless the fee is reflective of the actual cost of
reproduction, I believe that it would be invalid.

Based upon the foregoing, a fee for reproducing electronic information generally
would involve the cost of computer time, plus the cost of an information storage medium (i.e.,
a computer tape or compact disk) to which data is transferred. If the duplication of the data
involves a transfer of data from one disk to another, computer time may be minimal, perhaps
a matter of seconds. If that is so, the actual cost may involve only the cost of a disk.

Lastly, the suggestion by the Counsel to the County Legislature that actual cost
involves money expended in developing an information system is in my view inaccurate.
Based upon the terms of the Freedom of Information Law and its judicial interpretation,
actual cost involves only reproduction of a record, not the monies expended in development
of an information system or the purchase of hardware or software. I note, too, that although
compliance with the Freedom of Information Law involves the use of public employees' time
and other costs, 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)].

I hope that I have been of assistance. Should any questions arise, please feel free to
contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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