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August 20, 1999

Hon. Carolyn M. Symonds
Yates County Clerk
110 Court Street
Penn Yan, NY 14527-1130

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. Symonds:

I have received your letter of July 21. You have sought an advisory opinion
concerning your "obligation to allow a private company to bring in their own equipment to
the county clerk's office to scan county clerk records for their own profit at no charge to the
private company."

From my perspective, there are two separate but related issues to consider. In this
regard, I offer the following comments.

First, when records are accessible under the Freedom of Information Law, they must
be made available for inspection and copying [see §87(2)]. In general, the purpose for which
a request is made and the intended use of records are irrelevant to right of access [see Burke
v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976), M. Farbman
& Sons v. New York City Health and Hosps. Corp. 62 NY 2d 75 (1984)]. If an applicant
seeks to inspect accessible records, no fee may be charged. Further, an applicant may take
notes or copy the contents of records on his or her own. If an applicant want copies of
records, an agency is obliged to make copies available upon payment of the requisite fee [see
§87 (1)(b)(iii) and 89 (3)].

In a case in which one of the issues involved the ability of a member of the public to
bring and use his own photocopier, the court upheld regulations adopted by a village
prohibiting the use of personal photocopiers, holding that:

"This Court must balance the petitioner's rights against the
respondents' need to carry out their responsibilities. Given the
voluminous requests for documents, respondents were
justified in establishing regulations which would prevent
unreasonable interference with their other governmental
duties" [Murtha v. Leonard, Supreme Court, Nassau County,
June 16, 1993; modified on other grounds, 210 AD2d 411
(1994)].

I note that the municipality in Murtha, a small village, had limited space and staff. In my
opinion, the ability of an agency to prohibit the use of one's own copying or scanning
equipment would be dependent in part on the reasonableness of a prohibition in view of the
physical arrangements of the agency's premises and its staffing requirements or needs. If the
use of scanning equipment would not be significantly inconvenient or disruptive, it is
questionable whether an agency could prohibit the use of the equipment, especially in
consideration of the intent of the Freedom of Information Law to make records available
"wherever and whenever feasible" (see §84).

The second consideration involves the duty to maintain the custody, security and
integrity of County records. Here I direct your attention to §57.25(1) of the Arts and
Cultural Affairs Law which states in relevant part that:

" It shall be the responsibility of every local officer to maintain
records to adequately document the transaction of public
business and the services and programs for which such officer
is responsible; to retain and have custody of such records for
so long as the records are needed for the conduct of the
business of the office; to adequately protect such records; to
cooperate with the local government's records management
officer on programs for the orderly and efficient management
of records including identification and management of inactive
records and identification and preservation of records of
enduring value; to dispose of records in accordance with legal
requirements; and to pass on to his successor records needed
for the continuing conduct of business of the office..."

Based on the foregoing, as County Clerk, an element of your responsibilities, in my
view, involves "protecting" the records, ensuring that they are not stolen, defaced, misfiled
or otherwise handled or used in a manner in which their value and utility to the County and
the public generally may be compromised. If it is determined or reasonable to determine that
the custody or integrity of the records is or would be threatened, I believe that you would
have the authority to preclude a member of the public from taking temporary control of the
records through the use of a scanner or similar equipment. If such a determination is reached,
a person seeking the records would continue to have the right to inspect them or to obtain
copies upon payment of the fees authorized by law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt
cc: Bernetta Bourcy, County Attorney