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February 27, 2001

FOIL-AO-12548

 

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

I have received your letter of January 27 and the materials attached to it. You have
questioned the propriety of fees charged in response to a request made under the Freedom of
Information Law for records of the Southern Columbia County Ambulance Service, Inc.

In this regard, the initial issue in my view is whether the entity in question is required to
comply with the Freedom of Information Law.

That statute is applicable to agency records, and §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."

As such, the Freedom of Information Law generally pertains to records maintained by entities of
state and local governments.

However, in Westchester-Rockland Newspapers v. Kimball [50 NY2d 575 (1980)], a case
involving access to records relating to a lottery conducted by a volunteer fire company, the Court of
Appeals, the state's highest court found that volunteer fire companies, despite their status as not-for-
profit corporations, are "agencies" subject to the Freedom of Information Law. In so holding, the
Court stated that:

"We begin by rejecting respondent's contention that, in applying the
Freedom of Information Law, a distinction is to be made between a
volunteer organization on which a local government relies for
performance of an essential public service, as is true of the fire
department here, and on the other hand, an organic arm of
government, when that is the channel through which such services are
delivered. Key is the Legislature's own unmistakably broad
declaration that, '[a]s state and local government services increase and
public problems become more sophisticated and complex and
therefore harder to solve, and with the resultant increase in revenues
and expenditures, it is incumbent upon the state and its localities to
extend public accountability wherever and whenever feasible'
(emphasis added; Public Officers Law, §84).

"True, the Legislature, in separately delineating the powers and duties
of volunteer fire departments, for example, has nowhere included an
obligation comparable to that spelled out in the Freedom of
Information statute (see Village Law, art 10; see, also, 39 NY Jur,
Municipal Corporations, §§560-588). But, absent a provision
exempting volunteer fire departments from the reach of article 6-and
there is none-we attach no significance to the fact that these or other
particular agencies, regular or volunteer, are not expressly included.
For the successful implementation of the policies motivating the
enactment of the Freedom of Information Law centers on goals as
broad as the achievement of a more informed electorate and a more
responsible and responsive officialdom. By their very nature such
objections cannot hope to be attained unless the measures taken to
bring them about permeate the body politic to a point where they
become the rule rather than the exception. The phrase 'public
accountability wherever and whenever feasible' therefore merely
punctuates with explicitness what in any event is implicit" (id. at
579].

Moreover, although it was contended that documents concerning the lottery were not subject to the
Freedom of Information Law because they did not pertain to the performance of the company's fire
fighting duties, the Court held that the documents constituted "records" subject to the Freedom of
Information Law [see §86(4)].

Another decision confirmed in an expansive manner that volunteer fire companies are
required to comply with the Freedom of Information Law. That decision, S.W. Pitts Hose Company
et al. v. Capital Newspapers (Supreme Court, Albany County, January 25, 1988), dealt with the issue
in terms of government control over volunteer fire companies. In its analysis, the Court states that:

"Section 1402 of the Not-for-Profit Corporation Law is directly
applicable to the plaintiffs and pertains to how volunteer fire
companies are organized. Section 1402(e) provides:

'...a fire corporation, hereafter incorporated under this
section shall be under the control of the city, village,
fire district or town authorities having by law, control
over the prevention or extinguishment of fires therein.
Such authorities may adopt rules and regulations for
the government and control of such corporations.'

"These fire companies are formed by consent of the Colonie Town
Board. The Town has control over the membership of the companies,
as well as many other aspects of their structure, organization and
operation (section 1402). The plaintiffs' contention that their
relationship with the Town of Colonie is solely contractual is a
mischaracterization. The municipality clearly has, by law, control
over these volunteer organizations which reprovide a public function.

"It should be further noted that the Legislature, in enacting FOIL,
intended that it apply in the broadest possible terms. '...[I]t is
incumbent upon the state and its localities to extend public
accountability wherever and whenever feasible' (Public Officers Law,
section 84).

"This court recognizes the long, distinguished history of volunteer fire
companies in New York State, and the vital services they provide to
many municipalities. But not to be ignored is that their existence is
inextricably linked to, dependent on, and under the control of the
municipalities for which they provide an essential public service."

Based upon the foregoing, it is clear that volunteer fire companies are subject to the Freedom
of Information Law.

In the only case of which I am aware on the subject, the Appellate Division, Second
Department, held that a volunteer ambulance corporation performing its duties for an ambulance
district is subject to the Freedom of Information Law. In so holding, the decision stated that:

"The Court of Appeals has rejected any distinction between a
volunteer organization on which a local government relies for the
performance of an essential public service and an organic arm of
government (see, Matter of Westchester Rockland Newspapers v.
Kimball, 50 N.Y.2d 575, 579, 430 N.Y.S.2d 574, 408 N.E.2d 904).

"The appellant performs a governmental function, and it performs
that function solely for the Mastic Ambulance District, a municipal
entity and a municipal subdivision of the Town of Brookhaven
(hereinafter the Town). The appellant submits a budget to and
receives all of its funding from the Town, and the allocation of its
funds is scrutinized by the Town. Thus, the appellant clearly falls
within the definition of an agency and is subject to the requirements
of FOIL" [Ryan v. Mastic Ambulance Company, 212 AD 2d 716, 622
NYS 2d 795, 796 (1995)].

It is emphasized that the decision cited above pertained to an ambulance company performing
its duties for an ambulance district, which is itself a public corporation. I am unaware of the specific
nature of the ambulance company whose records you are requesting. If it is analogous to the entity
that was the subject of the Ryan decision, I believe that it would be subject to the Freedom of
Information Law. However, if it is different, the Freedom of Information Law might not apply. If
additional information can be provided concerning the ambulance company, perhaps I could offer
a more precise response.

Assuming that the Freedom of Information Law is applicable, unless a statute, an act of the
State Legislature, authorizes an agency to charge a fee for personnel time, searching for records or
charging more than twenty-five cents per photocopy for records up to nine by fourteen inches, no
such fees may be assessed. In this instance, I know of no statute that would authorize the Service
( if it is subject to the Freedom of Information Law ) to do so.

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 has been 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 [see Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)].

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 personnel time, for
inspection of or search for records, except as otherwise prescribed by statute.

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)].

Lastly, I note that the Freedom of Information Law is silent with respect to the ability to
charge for postage when records made available under that statute are mailed to an applicant.
Consequently, it has been advised an entity subject to the Freedom of Information Law may charge
for postage.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

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