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July 9, 1999

 

Ms. Victoria Szerko
Main Street
Box 294
Fleischmanns, NY 12430

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. Szerko:

I have received your letter of June 9 in which you sought guidance concerning
resistance on the part of the Village of Fleischmanns in making records available to you for
inspection and copying.

The record at issue is the book containing assessment information, and you expressed
interest in having copies of several pages. The Mayor indicated that you could not use the
copy machine that is available to the Village, "because it does not take large pages." When
you indicated that you "could copy each page in sections and then tape them together", the
Mayor prohibited you from doing so, because, in your words, he said that you "might drop
and tear the book in the process." You wrote further that "if [you] wanted a photocopy of
the book then [you] could pay the village $375 to have the book sent out via bonded
messenger to a facility that had photocopy equipment for copying large pages." You
indicated that you would not pay that amount, but it was agreed that you could photograph
the records. Nevertheless, you expressed concern that the Village would limit the use of
photographic equipment and frustrate your efforts.

From my perspective, the Village is required to make photocopies on the machine that
it generally uses and permit you to tape them together. In this regard, I offer the following
comments.

First, the Freedom of Information Law includes a broad statement of legislative intent
(§84) in which the State Legislature declared that "it is incumbent upon the state and its
localities to extend public accountability wherever and whenever feasible." Access to the
assessment roll is critical to many citizens, for review of its contents enables them to attempt
to ascertain whether a government agency has treated them fairly in relationship to the value,
and therefore, the taxation of their real property. Consequently, an agency is obliged by the
Freedom of Information Law to make the contents of the assessment book readily accessible.

Second, §87(2) of the Freedom of Information Law requires that records accessible
to the public as of right must be made available for inspection and copying, and §89(3)
requires that an agency make copies of those records upon payment of the requisite fee. In
my view, since the Village enjoys the use of a photocopier, if you ask that the book be copied
in a manner that enables you to tape the pages together, the Village would be required to do
so upon payment of the appropriate fee, which cannot exceed twenty-five cents per
photocopy [see §87(1)(b)(iii)].

I note that the Freedom of Information Law, based on its language, its intent and its
judicial interpretation, has been construed to require agencies to produce accessible
information in the format of the applicant's choice, so long as the agency is able to do so and
the applicant pays the requisite fee.

Illustrative of that principle is a case in which an applicant sought a database in a
particular format, and even though the agency had the ability to generate the information in
that format, it refused to make the database available in the format requested and offered to
make available a printout. In holding that the agency was required to make the data available
in the format requested and upon payment of a fee in accordance with §87(1)(b)(iii), the
Court in Brownstone Publishers, Inc. v. New York City Department of Buildings
unanimously held that:

"Public Officers Law [section] 87(2) provides that, 'Each
agency shall...make available for public inspection and copying
all records...' Section 86(4) includes in its definition of 'record',
computer tapes or discs. The policy underlying the FOIL is 'to
insure maximum public access to government records' (Matter
of Scott, Sardano & Pomerantz v. Records Access Officer, 65
N.Y.2d 294, 296-297, 491 N.Y.S.2d 289, 480 N.E.2d 1071).
Under the circumstances presented herein, it is clear that both
the statute and its underlying policy require that the DOB
comply with Brownstone's reasonable request to have the
information, presently maintained in computer language,
transferred onto computer tapes" [166 Ad 2d, 294, 295
(1990)].

In short, assuming that the records sought are available under the Freedom of
Information Law, that they can be made available in the format in which an applicant requests
it, and that the applicant is willing to pay the proper fee, I believe that an agency would be
obliged to do so. In this instance, the issue does not involve advanced technology, but rather
the capacity of the Village to make the records available by making more than one photocopy
of a large sheet. Since it has the ability to do so, I believe that it is required to do so under
the conditions specified in the preceding commentary.

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

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Donald E. Kearney
Lorraine DeMarfeo, Clerk