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May 5, 2000

FOIL-AO-12092

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 March 29 in which you sought an opinion concerning
the fees imposed by the Tompkins County Board of Elections for copies of machine readable
voter registration records, and whether the Board may remove certain data, particularly dates
of birth, from the files that it makes available in electronic format.

You indicated that the fee for "a machine-readable copy of portion of the registered
voter roster is $11.00 ($1.00 for disk media plus a $10.00 ‘setup' fee), plus $.005 per voter."
You added that having made a request for "a complete county list", you were informed "no
more than 23 minutes later", that it was ready for you to pick up.

In my view, the basis of the fee is inappropriate and inconsistent with law. As you
are likely 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, the cost of a tape or disk, plus the minimal cost of personnel time of an employee.
There is no basis, in my view, for charging a "setup" fee or a fee determined by the number
of names produced.

With respect to the removal of data, by way of background, relevant 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."

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'..."

With regard to your questions, I know of no provision in the Election Law that would
require that a board of elections to include any items other than names and residence
addresses 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.

As you requested, copies of this opinion will be forwarded to the Election
Commissioners.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Shary J. Zifchock
Elizabeth W. Cree