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 FOIL-AO-13906

February 21, 2003

 

E-MAIL

TO:

FROM: Robert J. Freeman, Executive Director

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 Mr.

I have received your letter in which, in brief, you raised questions concerning the fees that
may be charged for preparing copies of records pursuant to the Freedom of Information Law.

In this regard, §87(1)(b)(iii) of that statute provides that agencies, by rule, may establish fees
"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." Based on the foregoing, there are two standards for charging fees. One involves
photocopies up to nine by fourteen inches, in which case an agency may charge up to twenty-five
cents per photocopy, irrespective of its cost; and the second involves "other records", those that
cannot be photocopied (i.e., tape recordings, computer disks and tapes, etc.), in which case the fee
is based on the actual cost of reproduction. If another statute, an act of the State Legislature,
authorizes an agency to charge a different fee, that provision would supersede the Freedom of
Information Law.

With respect to clerical or other costs associated with responding to a request for copies of
records, 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. In addition to §87(1)(b) of the Law, the regulations
state 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 1401.8)."

Further, §1401.8(c)(3) states in relevant part that "the actual reproduction cost...is the average unit
cost for copying a record, excluding fixed costs of the agency such as operator salaries."

Based upon the foregoing, I believe that a fee for reproducing electronic information would
involve the cost of computer time, plus the cost of an information storage medium (i.e., a computer
tape or disk) to which data is transferred.

Although allusion has been made to personnel costs in some judicial decisions, none specifies
that those costs may clearly be assessed. Moreover, unless and until a court finds to the contrary,
the regulations promulgated by the Committee have the force and effect of law. That being so, I do
not believe that an agency may charge for its personnel or administrative costs in determining the
amount of a fee based on the actual cost of reproduction when responding to a request made under
the Freedom of Information Law.

I hope that I have been of assistance.

 

cc: Daniel Pacos
Philip Brothman