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December 12, 2000

 

FOIL-AO-12409

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 November 1, which reached this office on November 9. You
have sought clarification concerning the fees that may be charged under the Freedom of Information
Law, particularly those involving copies of accident reports.

In this regard, I offer the following comments.

First, the attachment to your letter refers to the "FOIA", which is the federal Freedom of
Information Act (5 USC §552) and which applies only to federal agencies. Each state has enacted
its own version of a law dealing with public access to government records, and in New York, the
Freedom of Information Law pertains to records maintained by state and local government agencies.
I note that §86(3) defines the term "agency" to mean:

"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation, council,
office or other governmental entity performing a governmental or
proprietary function for the state or any one or more municipalities
thereof, except the judiciary or the state legislature."

Second, from my perspective, unless a statute, an act of the State Legislature, authorizes an
agency to charge a different fee, an agency can charge no more than twenty-five cents per photocopy
up to nine by fourteen inches, nor can it charge a fee for search or administrative costs.

By way of background, §87(1)(b)(iii) of the Freedom of Information Law stated until October
15, 1982, that an agency could charge up to twenty-five cents per photocopy unless a different fee
was prescribed by "law". Chapter 73 of the Laws of 1982 replaced the word "law" with the term
"statute". As described in the Committee's fourth annual report to the Governor and the Legislature
of the Freedom of Information Law, which was submitted in December of 1981 and which
recommended the amendment that is now law:

"The problem is that the term 'law' may include regulations, local
laws, or ordinances, for example. As such, state agencies by means
of regulation or municipalities by means of local law may and in
some instances have established fees in excess of twenty-five cents
per photocopy, thereby resulting in constructive denials of access. To
remove this problem, the word 'law' should be replaced by 'statute',
thereby enabling an agency to charge more than twenty-five cents
only in situations in which an act of the State Legislature, a statute, so
specifies."

As such, prior to October 15, 1982, a local law, an ordinance, or a regulation for instance,
establishing a search fee or a fee in excess of twenty-five cents per photocopy or higher than the
actual cost of reproduction was valid. However, under the amendment, only an act of the State
Legislature, a statute, would in my view permit the assessment of a fee higher than twenty-five cents
per photocopy, a fee that exceeds the actual cost of reproducing records that cannot be photocopied,
or any other fee, such as a fee for search. In addition, it was confirmed judicially that fees
inconsistent with the Freedom of Information Law may be validly charged only when the authority
to do so is conferred by a statute. In addition, in a case in which you were involved, Sheehan v. City
of Syracuse [521 NYS 2d 207 (1987)], a fee in excess of twenty-five cents per photocopy for certain
records was established by an ordinance, and the court found the ordinance to be invalid. More
recently, a provision of a county code authorizing a fee of twenty dollars for an accident report was
struck down, and it was determined that the agency could charge no more than twenty-five cents per
photocopy [Gordon Schotsky & Rappaport v. Suffolk County, 221 AD 2d 339 (1996)].

Further, the specific language of the Freedom of Information Law and the regulations
promulgated by the Committee on Open Government indicate that, absent statutory authority, an
agency may charge fees only for the reproduction of records. Section 87(1)(b) of the Freedom of
Information Law states:

"Each agency shall promulgate rules and regulations in conformance
with this article...and pursuant to such general rules and regulations
as may be promulgated by the committee on open government in
conformity with the provisions of this article, pertaining to the
availability of records and procedures to be followed, including, but
not limited to...

(iii) 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 regulations promulgated by the Committee states in relevant part that:

"Except when a different fee is otherwise prescribed by statute:

(a) There shall be no fee charged for the following:
(1) inspection of records;
(2) search for records; or
(3) any certification pursuant to this Part" (21
NYCRR section 1401.8).

As such, the Committee's regulations specify that no fee may be charged for inspection of or search
for records, except as otherwise prescribed by statute. Therefore, absent statutory authority to do so,
I do not believe that the Department could validly charge a fee other than a maximum fee of twenty-
five cents per photocopy.

Moreover, although compliance with the Freedom of Information Law involves the use of
public employees' time, the Court of Appeals has found that the Law is not intended to be given
effect "on a cost-accounting basis", but rather that "Meeting the public's legitimate right of access
to information concerning government is fulfillment of a governmental obligation, not the gift of,
or waste of, public funds" [Doolan v. BOCES, 48 NY 2d 341, 347 (1979)].

I note that confusion has arisen on occasion concerning fees for accident reports due perhaps
to the provisions of §202 of the Vehicle and Traffic Law. Section 202(3) authorizes a copying fee
of $15.00 for accident reports obtained from the Department of Motor Vehicles and one dollar per
page for copies of other records. Section 202 also authorizes the Department to collect certain fees
for searching for records. However, since the provisions of the Vehicle and Traffic Law pertain to
particular records in possession of the Department of Motor Vehicles only, in my opinion, other
agencies, such as municipal police or sheriff's departments, cannot unilaterally adopt policy or
regulations authorizing fees in excess of twenty-five cents per photocopy or other fees without
specific statutory authority to do so.

Similarly, §66-a of the Public Officers Law, a statute that deals with accident reports and
certain other records maintained by the Division of State Police, provides in subdivision (2) that:

"Notwithstanding the provisions of section twenty-three hundred
seven of the civil practice law and rules, the public officers law, or
any other law to the contrary, the division of state police shall charge
fees for the search and copy of accident reports and photographs. A
search fee of fifteen dollars per accident report shall be charged, with
no additional fee for a photocopy. An additional fee of fifteen dollars
shall be charged for a certified copy of any accident report. A fee of
twenty-five dollars per photograph or contact sheet shall be charged.
The fees for investigative reports shall be the same as those for
accident reports."

Based on the foregoing, it is clear that a statute separate from the Freedom of Information Law
authorizes the Division of State Police to charge fifteen dollars for the search and copy of accident
reports.

In the two instances cited above, those dealing with the Department of Motor Vehicles and
the Division of State Police, statutes have been enacted that enable those agencies to charge fees
different from those ordinarily applicable under the Freedom of Information Law. Those are the only
situations, however, of which I am aware in which agencies may charge more than twenty-five cents
per photocopy in response to requests for accident reports.

I hope that the foregoing serves to clarify your understanding of the matter and that I have
been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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