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September 16, 1999

Ms. M. Pauline Carter
Town Clerk
Town of Vienna
P.O. Box 250, 2083 State Route 49
North Bay, NY 13123

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. Carter:

I have received your letter of August 20. You have questioned the propriety of a
charge of $35 imposed by the Oneida County Board of Elections for a copy of a disk
containing the County's voter registration list.

In this regard, that issue was considered at length in Schultz v. New York State Board
of Elections ( Supreme Court, Albany County, September 7, 1995). The court determined
the issue by viewing both the Freedom of Information Law and sections of the Election Law,
stating that:

‘The language of the Freedom of Information Law ( Public
Officers Law, sct. 87 (1)(b)(iii), which limits charges for
requested public records to ‘the actual cost of reproducing'
[emphasis added], is elucidating. ‘Actual cost' would
reasonably seem to mean mor finite, direct and less inclusive
than'[indirect] cost', which is a concept as infinite and
expandable as the mind of man. ‘Reproducing' a record
certainly does not include ‘producing' a record in the first
place -i.e., compiling the information from which the record is
produces. The purpose and intention of the Freedom of
Information Law is to further the concept of open
government. For this reason charges for public records must
be kept to a minimum. In a sense the information compiled by
counties under election Law 5-602 and 5-604 is a part of that
concept and charges for that information must be kept to a
minimum so as to maximize access thereto."

Further, using the standard of "actual cost of reproduction", it was stated that:

"Where the record is a computerized record the charge shall
be limited to the cost of a diskette or other computerized tape
and a reasonable amount for the salary of the employee
downloading said diskette or tape during the time such
diskette or tape is being downloaded."

If reproduction of the voter list involves a simple transfer of data from one storage
medium to another, i.e., from a computer to one or more disks, I would conjecture that the
time and effort to do so would be minimal. If that is so, in consideration of the cost of a disk,
which is generally less than a dollar, the fee of $35 would appear to be inconsistent with law.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Oneida County Board of Elections