August 2, 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 facts presented in your correspondence.
As you are aware, I have received your letter of July 1 in which you referred to an opinion that I prepared in response to an inquiry by Mr. John Collins. He questioned the propriety of the assessment of a fee in response to his request for certain records, contending that "no copying had been done" and that therefore, as a taxpayer, the District was "paid ‘twice’ for public documents."
Based on his additional remarks, I responded as follows:
"...unless a copy of a record is made, I do not believe that an agency may charge a fee when records are made available pursuant to the Freedom of Information Law. It has been suggested that if copies of records are made in anticipation of requests for records, an agency may charge a fee for copies. In the situation that you described, however, that does not appear to have been so, and the agency did not make copies of the records sought either in response to your request or in anticipation of the receipt of a request. If that is so, again, I do not believe that any fee could have been charged."
In response to my opinion, you wrote that:
"Experience has shown that, during the life of a labor agreement, typically 3-5 years, multiple copies will be requested by both state and local agencies (i.e. PERB, BOCES, school districts, etc.) as well as private individual FOIL requests.
"In anticipation of such requests, a number of copies of each labor agreement are made beyond the number immediately needed for distribution.
"Similarly, additional copies of the annual independent auditors reports are also produced in anticipation of similar requests."
In consideration of the information that you offered, it is clear that extra copies of certain records are produced in anticipation of requests for copies made pursuant to the Freedom of Information Law. If that was so in relation to Mr. Collins’ request, I believe that the District could have assessed its established fee for copies.
I hope that I have been of assistance.
Robert J. Freeman
cc: John Collins