March 15, 2004
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 facts presented in your correspondence.
As you are aware, I have received your letter of February 20.
You wrote that, while engaged in genealogical research in Allegany County, you began to photograph records with your digital camera. The deputy clerk, however, informed you that you are "not allowed" to do so, and that you may copy the contents of records "by hand" or obtain photocopies upon payment of a fee. You have questioned the propriety of the clerk’s prohibition.
In this regard, as you suggested, §87(2) of the Freedom of Information Law states that records are available for inspection and copying. There is nothing in that statute that references the ability to photograph records or, contrarily, imposes a prohibition from so doing.
From my perspective, the issue involves whether the clerk’s action is reasonable. There is case law involving the use of personal photocopier, and it was held that municipality could prohibit the use of one’s photocopier if its presence or use, due to the size of the device or the municipal office, is disruptive [ see Murtha v. Leonard, 60 NYS 2d 101 (1994), 210 AD 2d 411]. Due to the disruption caused in that instance, the prohibition was found to be reasonable. Certainly, however, if the use of a copier or camera, for example, is not disruptive, I do not believe that a prohibition concerning the use of such a device would be reasonable or consistent with law.
In my opinion, the use of one’s own digital camera would not ordinarily be disruptive, and if that was so in the situation that you described, the action of the official in my view would have been unreasonable.
Lastly, I note that the use of digital cameras to copy government records has become common and, in some instances, mutually beneficial and recommended. For instance, when an agency does not have a photocopier that can accommodate oversized records, such as maps, the use of a digital camera has served the interests of both the agency and the public.
I hope that I have been of assistance.
cc: Deputy Clerk