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February 8, 2000

FOIL-AO-11946

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

I have received your letter of January 3 in which you sought guidance concerning a
request for "microfilms...of all mortgages and deeds recorded in the Albany County Clerk's
office."

You indicated that your practice in responding to requests for microfilmed documents
"not belonging to the County Clerk's office" involves charging on the basis of the actual cost
of reproduction in a manner consistent with §87(1)(b)(iii) of the Freedom of Information
Law. That provision authorizes agency to establish "the fees for copies of records, which
shall not exceed twenty-five cents per photocopy not in excess of nine by fourteen inches, or
the actual cost of reproducing any other record, except when a different fee is otherwise
prescribed by statute." The issue is whether the fee for microfilmed records that are the
records of the County Clerk should be based on the actual cost of reproduction in accordance
with the language of the Freedom of Information Law quoted above, or §8019 of the Civil
Practice Law and Rules (CPLR).

In this regard, I know of no judicial determination that has considered the issue that
you raised, and from my perspective, the Freedom of Information Law is not the governing
statute.

As you are aware, §§8018 through 8021 of the CPLR require that county clerks
charge certain fees in their capacities as clerks of court and other than as clerks of court.
Since those fees are assessed pursuant to statutes other than the Freedom of Information Law,
I believe that they may exceed those permitted under the Freedom of Information Law. As
stated in §8019, "The fees of a county clerk specified in this article shall supersede the fees
allowed by any other statute for the same services...".

Subdivision (f) of §8019, entitled "Copies of records", states in relevant part that:

"The following fees, up to a maximum of thirty dollars per
record shall be payable to a county clerk or register for copies
of the records of the office except records filed under the
uniform commercial code:

1. to prepare a copy of any paper or record on file in his office,
except as otherwise provided, fifty cents per page with a
minimum fee of one dollar."

If a record subject to subdivision (f) is reproduced on paper, i.e., by means of a
photocopy machine, it would be clear in my opinion that the Freedom of Information Law
would not be applicable and that a county clerk could charge "fifty cents per page with a
minimum fee of one dollar..." If an equivalent record is no longer maintained on paper and is
not reproduced onto a "page", that factor would not in my view transfer the basis for charging
a fee to the Freedom of Information Law; rather, I believe that §8019(f) would continue to
govern.

While I am unfamiliar with the legislative history of §8019, I would conjecture that
your view is appropriate, that the Legislature in enacting that and other sections within
Article 80 of the CPLR, intended that county clerks, in their capacities as clerks of court and
otherwise, carry out certain duties and assess certain fees for performing particular services.
When those provisions were initially enacted in 1963, the advances in information
technology that have become commonplace could not have been envisioned. Nevertheless, if
your contention concerning legislative intent is accurate, I believe that you could charge
"fifty cents per page" for reproducing records in media other than paper equivalent to the
charge that would be assessed for a "page" reproduced on paper.

It is reemphasized that the governing statute, in my view, is not the Freedom of
Information Law, but rather §8019 of the CPLR, and it is suggested that you might seek the
views of others, or that the County Attorney seek an opinion from the Attorney General.

I regret that I cannot be of greater assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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