May 10, 2004
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 and the materials attached to it.
In brief, when records that you requested were determined to be available under the Freedom of Information Law by the Town of Islip, you were informed that the fee for copies would be twenty-five cents per photocopy, and that “your request for certification of fifteen pages is subject to a fifteen dollar ($15.00) certification fee.” The fee for certification is based on §8009(3) of the Civil Practice Law and Rules (CPLR), entitled “Oaths; acknowledgments; certification or exemplification”, which states that:
“Any authorized officer is entitled, for the services specified, to the following fees...for certifying or exemplifying a typewritten or printed copy of any document, paper, book or record in his custody, twenty-five cents for each folio with a minimum of one dollar.”
You also referred to §67-a of the Public Officers Law, which provides that:
“Whenever there shall be presented to any public officer for certification or exemplification, a previously prepared legibly typewritten or printed copy of any document, paper, book or record in such officer’s custody, the fees in such case, for certification or exemplification, shall be at the rate of three cents for each folio; but the minimum total charge for certification or exemplification in all cases shall be twenty-five cents.”
You have asked whether those provisions, or 21 NYCRR §1408.3, a portion of the regulations promulgated by the Committee on Open Government, would govern in a situation in which a certification is sought pursuant to §89(3) of the Freedom of Information Law. The regulations indicate that “[t]here shall be no fee charged for...any certification pursuant to this part.” Section 89(3) states in relevant part that “[u]pon payment of, or offer to pay, the fee prescribed therefor, the entity shall provide a copy of such record and certify to the correctness of such copy if so requested....”
From my perspective, the functions and intent of §8009(3) of the CPLR, §67-a of the Public Officers Law, and the Freedom of Information Law and its implementing regulations are different. That being so, I believe that the regulations promulgated pursuant to the Freedom of Information Law apply in the context of your question and that no fee may be charged for certification.
Section 8009(3) is derived from earlier provisions that were repealed. In consideration of those provisions and §2309 of the CPLR, which was derived from the same earlier provisions, it appears that the intent of each of those provisions involves ascertaining the truth. Much of the commentary relates to oaths. As you know, an oath involves a person swearing that he or she will impart the truth. As it pertains to certifications, it appears that §8009(3) involves an intent to guarantee that the contents of records can be relied upon because the contents are accurate and reflect the truth in some sort of civil action or proceeding.
Section 67-a involves documentation that was “previously prepared” and “presented to” a public officer for certification. I note that §67-a was enacted in 1920, and that its language has remained unchanged. At the time of its enactment, there were no photocopy or machines or similar devices, and I believe that certification as envisioned by that statute involved a personal, word for word review of the contents of a document.
In contrast, the Freedom of Information Law pertains to records in the custody and control of and copies prepared by an agency. Copying records under that statute generally involves electronic reproduction, either by means of a photocopier or a computer. Further, in the only provision in the Freedom of Information Law that envisions a particular fee, §87(1)(b)(iii), refers to a fee for copying, or the actual cost of reproducing any other record (i.e., a record that cannot be photocopied, such as a tape recording). Perhaps most importantly in the context of your question, unlike §8009(3) and §67-a, the intent of which would appear to be truth in the case of the former and accuracy in the latter, the Freedom of Information Law requires that records be made available, irrespective of the “truth” or accuracy of their contents. If a record requested under the Freedom of Information Law indicates that two plus two equals five, it must be disclosed, unless there is an exception to rights of access that may properly be asserted [see §87(2)]. If a person seeks a certification under the Freedom of Information Law when a copy is made available, the certification merely indicates that the agency has made a true copy of its record; the certification made under that law has no connection or relevance to the accuracy of the content of the record.
In short, I do not believe that either CPLR, §8009(3) or §67-a of the Public Officers Law authorizes the imposition of a fee for a certification sought pursuant to §89(3) of the Freedom of Information Law.
I hope that I have been of assistance.
Robert J. Freeman
cc: Michelle Remsen
Erin A. Sidaras