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FOIL-AO-13706

 

November 15, 2002

 

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 in which you questioned the propriety of fees assessed by the
Town of Cairo for reproducing certain records.

As I understand the billing statement attached to your letter, the Town charged twenty-five
cents each for photocopies of nine by twelve inches. However, for copies of maps, the Town
charged $27.00 to reproduce them, plus $0.34 per mile, apparently to transport them to a location
where they could be copied, and $8.50 an hour for the "time for map reproduction."

In this regard, §87(1)(b)(iii) of the Freedom of Information Law contains essentially two
standards under which agency may impose fees for copying records. First, an agency may charge
up to twenty-five cents per photocopy up to nine by fourteen inches; and second, for copies of all
other records, an agency may charge based on the "actual cost" of reproduction. Those standards
apply, unless a different fee is prescribed by statute, and no other statute would be pertinent in this
instance.

It appears that the maps that you requested are larger than nine by fourteen inches and could
not be reproduced, as a single sheet, by means of the Town's photocopying equipment. In order to
reproduce the maps, it appears that a Town employee drove to a location where they could be copied
and paid $27.00 to have them copied. If that is so, the "actual cost" in my view would include the
cost of mileage and whatever was paid to a copying service to have the maps reproduced. Assuming
that the $8.50 per hour for time involved the time of a town employee, a fee of that nature would in
my view be contrary to law. The regulations promulgated by the Committee on Open Government
specify that employee time or other personnel costs cannot be imposed [ 21 NYCRR §1401.8).

In similar situations, it has been suggested that an agency official inform the applicant for
oversized records of the fee in advance of having copies made. In the alternative, an applicant may
choose to photograph the record with his or her own camera at no charge, or photocopies of the map
could be made and cut and pasted together. In that instance, I believe that the Town could charge
twenty-five cents for each photocopy.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Planning Board
Town Board
Town Clerk