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April 24, 2000

FOIL-AO-12067

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 you letter of March 16 in which you sought an advisory opinion
relating to fees assessed by the New York City Board of Elections for copies of records, as
well as related issues.

You indicated that the Board of Elections charges at least $400 and as much as $1000
for computer tapes of borough voter registration lists, and that "there is a $400 fee for any
specific district..." You also referred to "an optional field to fill-in a Home Phone number"
and asked whether that field must be included "as part of their computerized records in
addition to the required voter registration information" and whether the Board must "provide
the phone numbers in addition to the required voter registration information when
reproducing electronic records."

In this regard, I offer the following comments.

First, with respect to fees, as you may be aware, §87(1)(b)(iii) of the Freedom of
Information Law authorizes agencies to charge up to twenty-five cents per photocopy for
records up to nine by fourteen inches, or the actual cost of reproducing other records (i.e.,
those that cannot be photocopied, such as computer tapes or disks, tape recordings, etc.),
unless a different fee is prescribed by statute.

The amount of fees permitted to be charged for a computerized voter registration list
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 more 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."

When reproduction of a voter list involves a simple transfer of data from one storage
medium to another, i.e., from a computer to one or more tapes or disks, I believe that the time
and effort to do so would be minimal. If that is so, the "actual cost" would involve computer
time plus the cost of a tape or disk. Computer disks generally cost less than a dollar each;
tapes may be somewhat more expensive.

On the basis of the foregoing, it appears that the fees to which you referred are
inconsistent with law.

Second, as a general matter, the Freedom of Information Law is based upon a
presumption of access. Stated differently, all records of an agency are available, except to
the extent that records or portions thereof fall within one or more grounds for denial
appearing in §87(2)(a) through (i) of the Law. From my perspective, when that statute
applies, home addresses and home telephone numbers may generally be withheld on the
ground that disclosure would constitute "an unwarranted invasion of personal privacy" [see
§87(2)(b)].

Nevertheless, §89(6) of the Freedom of Information Law states that:

"Nothing in this article shall be construed to limit or abridge
any otherwise available right of access at law or in equity to
any party to records."

As such, if records are available as a right under a different provision of law or by means of
judicial determination, nothing in the Freedom of Information Law can serve to diminish
rights of access [see e.g., Kwitny v. McGuire, 53 NY2d 968 (1981); Szikszay v. Buelow,
436 NYS 2d 558, 583 (1981)].

Relevant in this instance is §5-602 of the Election Law, entitled "Lists of registered
voters; publication of", which states that voter registration lists are public. Specifically,
subdivision (1) of that statute provides in part that a "board of elections shall cause to be
published a complete list of names and residence addresses of the registered voters for each
election district over which the board has jurisdiction"; subdivision (2) states that "The board
of elections shall cause a list to be published for each election district over which it has
jurisdiction"; subdivision (3) requires that at least fifty copies of such lists shall be prepared,
that at least five copies be kept "for public inspection at each main office or branch of the
board", and that "other copies shall be sold at a charge not exceeding the cost of publication."

Since §5-602 of the Election Law confers unrestricted public rights of access to voter
registration lists, in my opinion, nothing in the Freedom of Information Law could be cited to
restrict those rights. Further, as a general matter, I believe that a statute pertaining to a
specific subject prevails over a statute pertaining to a general subject. A statute in the
Election Law that pertains to particular records would in my view supersede a statute
pertaining to records generally, such as the Freedom of Information Law.

In like manner, §3-220(1) of the Election Law states in part that: "All registration
records, certificates, lists and inventories referred to in, or required by, this chapter shall be
public records..." Additionally, §5-210 of the Election Law, entitled "Registration and
enrollment and change of enrollment upon application", includes reference to voter
application forms and provides in paragraph (k) of subdivision (5) that the form must
include:

"(i) A space for the applicant to indicate whether or not he has
ever voted or registered to vote before and, if so, the
approximate year in which he last voted or registered and his
name and address at the time.

(ii) The name and residence address of the applicant including
the zip code and apartment number, if any.

(iii) The date of birth of the applicant."

(iv) A space for the applicant to indicate whether or not he is a
citizen of the United States.

(v) The gender of the applicant (optional).

(vi) A space for the applicant to indicate his choice of party
enrollment, with a clear alternative provided for the applicant
to decline to affiliate with a party.

(vii) The telephone number of the applicant (optional).

(viii) A place for the applicant to execute the form on a line
which is clearly labeled ‘signature of applicant'..."

Again, since the Election Law requires the disclosure of registration records, which include
the items referenced above, nothing in the Freedom of Information Law may be asserted to
withhold those records. Therefore, although certain of those items might justifiably be
denied as an unwarranted invasion of personal privacy if contained in other kinds of records,
the specific direction provided in the Election Law in my opinion requires disclosure of
registration records, including those items.

With regard to your questions, I know of no provision in the Election Law that would
require that a board of elections to include home phone numbers in voter registration lists.
However, if they are included in computerized data pursuant to the Election Law, for the
reasons described earlier, I believe that they would be accessible.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Records Access Officer, New York City Board of Elections