October 27, 2003
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.
I have received your letter concerning the obligation of a county clerk to make copies of records available in an electronic storage medium, such as computer tapes or disks.
In this regard, as you are aware, county clerks maintain a variety of records, some of which are court records maintained in their capacities as clerks of courts. Insofar as the issues raised involve those persons as clerks of courts, they are beyond the advisory jurisdiction of the Committee on Open Government. Insofar as the issues pertain to other records maintained by county clerks, I believe that those records are subject to the Freedom of Information Law.
As the matter pertains to the Freedom of Information Law, several judicial decisions indicate, in brief, that if an agency has the ability to make records available with reasonable effort in the storage medium desired by the applicant, and if the applicant pays the requisite fee for copying, the agency is required to do so [see e.g., Szikszay v. Buelow, 436 NYS2d 558, 107 Misc.2d 886 (1981), Brownstone Publishers, Inc. v. New York City Department of Buildings, 550 NYS2d 564, aff'd 166 AD2d 294 (1990), New York Public Interest Research Group v. Cohen, 729 NYS2d 379, 188 Misc.2d 658 (2001)[.
The fee for copies of records other than photocopies, according to §87(1)(b)(iii) of the Freedom of Information Law, is based on the actual cost of reproduction, unless a different fee is prescribed by statute. A significant question in my view is whether a fee assessed by a county clerk for records made available in electronic media should be based on the actual cost of reproduction in accordance with the language of the Freedom of Information Law or §8019 of the Civil Practice Law and Rules (CPLR).
I know of no judicial determination that has considered the issue. However, from my perspective, the Freedom of Information Law may not be the governing statute.
As you may be aware, §§8018 through 8021 of the CPLR require that county clerks charge certain fees in their capacities as clerks of court and other than as clerks of court. Since those fees are assessed pursuant to statutes other than the Freedom of Information Law, I believe that they may exceed those permitted under the Freedom of Information Law. As stated in §8019, "The fees of a county clerk specified in this article shall supersede the fees allowed by any other statute for the same services...".
Subdivision (f) of §8019, entitled "Copies of records", states in relevant part that:
"The following fees, up to a maximum of thirty dollars per record shall be payable to a county clerk or register for copies of the records of the office except records filed under the uniform commercial code:
1. to prepare a copy of any paper or record on file in his office, except as otherwise provided, sixty-five cents per page with a minimum fee of one dollar thirty cents."
If a record subject to subdivision (f) is reproduced on paper, i.e., by means of a photocopy machine, it would be clear in my opinion that the Freedom of Information Law would not be applicable and that a county clerk could charge "sixty-five cents per page with a minimum fee of one dollar thirty cents..." If an equivalent record is no longer maintained on paper or is not reproduced onto a "page", that factor would not in my view transfer the basis for charging a fee to the Freedom of Information Law; rather, I believe that §8019(f) would continue to govern.
While I am unfamiliar with the legislative history of §8019, I would conjecture that the Legislature in enacting that and other sections within Article 80 of the CPLR, intended that county clerks, in their capacities as clerks of court and otherwise, carry out certain duties and assess certain fees for performing particular services. When those provisions were initially enacted in 1963, the advances in information technology that have become commonplace could not have been envisioned. Nevertheless, if my comment concerning legislative intent is accurate, a county clerk could charge "sixty-five cents per page" for reproducing records in media other than paper equivalent to the charge that would be assessed for a "page" reproduced on paper.
I hope that I have been of assistance.
Robert J. Freeman