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 FOIL-AO-14966

October 26, 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.

Dear

As you are aware, I have received your letter in which you raised a series of issues and sought an advisory opinion concerning the propriety of certain elements of a proposed agreement between Sullivan County and Pictometry International Corporation. In brief, under the agreement, Pictometry would generate and provide the County with aerial photographs in "a proprietary digital format." Pictometry would "own the images and the software and would license the County to use them."

You raised questions concerning Schedule B of the proposed agreement as its terms relate to the Freedom of Information Law. Schedule B would provide as follows:

"‘1. All Licensed Images provided pursuant to this License Agreement are and shall remain the property of Pictometry International Corp.

‘2. Any reproductions of the Licensed Images using the Licensed Software, or reproduction of the Licensed Images in any form by any other means by Licensee or an Authorized Subdivision thereof, shall be for internal use or use by a consultant to the Licensee or an Authorized Subdivision thereof, unless a fee is collected as follows:

‘A. All hard copy(printed) copies of Images shall be sold for a minimum of $40 per Image, 50% of the fee charged shall be remitted by the Licensee or the Authorized Subdivision thereof to Pictometry International Corp. In accordance with the License Agreement. However, any fees for additional Licensee work on the Images, e.g. annotations, measurements, etc., shall be retained in full by Licensee.

‘B. All digital or electronic copies of the Images shall be sold for a minimum fee of $50 per Image for professional or commercial uses and for a minimum fee of $20 per Image for private or personal uses, 50% of the fee charged shall be remitted by the Licensee or the Authorized Subdivision thereof to Pictometry International Corp. in accordance with the License Agreement. However, any fees for additional Licensee work on the Images shall be retained in full by the Licensee. The digital or electronic images sold by the Licensee under this License shall be Electronic Photo Images without Pictometry data.’"

In this regard, I offer the following comments.

First, the Freedom of Information Law is expansive in its scope, for it pertains to all records of an agency, such as a county, and §86(4) defines the term "record" to mean:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

Based on the foregoing, it is clear in my opinion that photographs generated for and provided to the County would constitute agency records that fall within the coverage of the Freedom of Information Law. As soon as those records are prepared for or in possession of the County, I believe that the County, not Pictometry, would "own" them and that they would be County "property."

I note as an aside that Article 57-A of the Arts and Cultural Affairs Law, the "Local Government Records Law", deals with records management and the custody, retention and disposal of local government records. Section 57.17(4) also defines the term "record" expansively, for it states that:

"‘Record’ means any book, paper, map, photograph, or other information-recording device, regardless of physical form or characteristic, that is made, produced, executed, or received by any local government or officer thereof pursuant to law or in connection with the transaction of public business. Record as used herein shall not be deemed to include library materials, extra copies of documents created only for convenience of reference, and stocks of publications."

As I understand §57.17, the photographs at issue would constitute "records" subject to the requirements of Article 57-A.

It is emphasized that the Court of Appeals has construed the definition of "record" for the purposes of the Freedom of Information Law as broadly as its specific language suggests. The first such decision that dealt squarely with the scope of the term "record" involved documents pertaining to a lottery sponsored by a fire department. Although the agency contended that the documents did not pertain to the performance of its official duties, i.e., fighting fires, but rather to a "nongovernmental" activity, the Court rejected the claim of a "governmental versus nongovernmental dichotomy" [see Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581 (1980)] and found that the documents constituted "records" subject to rights of access granted by the Law. Moreover, the Court determined that:

"The statutory definition of 'record' makes nothing turn on the purpose for which it relates. This conclusion accords with the spirit as well as the letter of the statute. For not only are the expanding boundaries of governmental activity increasingly difficult to draw, but in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons" (id.).

In a decision involving records prepared by corporate boards furnished voluntarily to a state agency, the Court of Appeals reversed a finding that the documents were not "records," thereby rejecting a claim that the documents "were the private property of the intervenors, voluntarily put in the respondents' 'custody' for convenience under a promise of confidentiality" [Washington Post v. Insurance Department, 61 NY 2d 557, 564 (1984)]. Once again, the Court relied upon the definition of "record" and reiterated that the purpose for which a document was prepared or the function to which it relates are irrelevant. Moreover, the decision indicated that "When the plain language of the statute is precise and unambiguous, it is determinative" (id. at 565). I believe that to be so in the context of the situation that you described, that photographs produced for the County constitute "records" within the custody of the County that are subject to the provisions of the Freedom of Information Law.

Second, the introductory language in §2 of Schedule B states that reproduction of licensed images "shall be for internal use or use by a consultant to the Licensee [the County] or an Authorized Subdivision thereof, unless a fee is collected...." From my perspective, once a record is maintained by or for an agency, there can be no restriction on its use. As a general matter, when records are accessible under the Freedom of Information Law, it has been held that they must be made equally available to any person, regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals has held that:

"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on government decision-making, its ambit is not confined to records actually used in the decision-making process. (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

Farbman pertained to a situation in which a person involved in litigation against an agency requested records from that agency under the Freedom of Information Law. In brief, it was found that one's status as a litigant had no effect upon that person's right as a member of the public when using the Freedom of Information Law, irrespective of the intended use of the records. Similarly, unless there is a basis for withholding records in accordance with the grounds for denial appearing in §87(2), the use of the records, including the potential for commercial use or the status of the applicant, is in my opinion irrelevant.

Next, the remaining provisions in Schedule B pertain to fees for copies, and they include minimum fees, depending on the nature or use of the copy (i.e., printed "hardcopy" images or digital or electronic copies made available for personal use, as opposed to commercial or professional use), of $20, $40 or $50, with 50% of the monies obtained remitted to Pictometry. Again, the law makes no distinction concerning the intended use or status of an applicant for records. Moreover, as you suggested, I do not believe that the County may charge a fee based on a contractual agreement that exceeds the fee authorized by the Freedom of Information Law.

Based on the legislative history of the Freedom of Information Law, an agency may charge in excess of twenty-five cents per photocopy up to nine by fourteen inches or greater than the actual cost of reproducing any other records only when a statute, an act of the State Legislature, so permits. By way of background, §87(1)(b)(iii) stated until October 15, 1982, that an agency could charge up to twenty-five cents per photocopy or the actual cost of reproduction unless a different fee was prescribed by "law". Chapter 73 of the Laws of 1982 replaced the word "law" with the term "statute". As described in the Committee's fourth annual report to the Governor and the Legislature, which was submitted in December of 1981 and which recommended the amendment that is now law:

"The problem is that the term 'law' may include regulations, local laws, or ordinances, for example. As such, state agencies by means of regulation or municipalities by means of local law may and in some instances have established fees in excess of twenty-five cents per photocopy, thereby resulting in constructive denials of access. To remove this problem, the word 'law' should be replaced by 'statute', thereby enabling an agency to charge more than twenty-five cents only in situations in which an act of the State Legislature, a statute, so specifies."

Therefore, prior to October 15, 1982, a local law, an ordinance, or a regulation for instance, establishing a search fee or a fee in excess of twenty-five cents per photocopy or higher than the actual cost of reproduction was valid. However, under the amendment, only an act of the State Legislature, a statute, would in my view permit the assessment of a fee higher than twenty-five cents per photocopy, a fee that exceeds the actual cost of reproducing records that cannot be photocopied, (i.e., electronic information), or any other fee, such as a fee for search or overhead costs.

Most significantly, it has been confirmed judicially that fees inconsistent with the Freedom of Information Law may be validly charged only when the authority to do so is conferred by a state statute [see Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)]. In another decision on the matter involved a provision in the Suffolk County Code that established a fee of twenty dollars for photocopies of police reports [Gandin, Schotsky & Rappaport v. Suffolk County, 640 NYS2d 214, 226 AD2d 339 (1996)]. The Appellate Division unanimously determined that the provision in the County Code was invalid. In short, it was determined an enactment of a municipal body is not a statute, and the County was restricted to charging a fee of twenty-five cents per photocopy for the records at issue.

While the situation at issue does not involve a local enactment, the principle and precedent are clear, that fees for copies are fixed by the Freedom of Information Law. In this instance, an agreement between an agency and a private entity to assess fees in excess of those authorized by that statute would, in my view, be invalid. I concur with your contention that merely because Pictometry’s software may be used to "send the electronic image to the [County] printer is irrelevant." That kind of situation is common; agencies routinely use commercial software to carry out any number of functions relating to transfer, preparation or reproduction of records. The use of the software is itself relevant only as a factor in determining the actual cost of reproducing records; that use does not authorize the establishment of a fee above the actual cost of reproduction.

I note, too, that 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. Section 87(1)(b) states:

"Each agency shall promulgate rules and regulations in conformance with this article...and pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the availability of records and procedures to be followed, including, but not limited to...

(iii) the fees for copies of records 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."

The regulations promulgated by the Committee 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)."

Based upon the foregoing, the fee for reproducing electronic information ordinarily 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 compliance with the Freedom of Information Law involves the use of public employees' time and perhaps other costs, the Court of Appeals has found that the Law is not intended to be given effect "on a cost-accounting basis", but rather that "Meeting the public's legitimate right of access to information concerning government is fulfillment of a governmental obligation, not the gift of, or waste of, public funds" [Doolan v. BOCES, 48 NY 2d 341, 347 (1979)].

Lastly, you referred to Pictometry’s concern that:

"...if the County was free to sell digital copies for the amount allowed under FOIL, i.e., actual cost to the County for reproduction, such sales by the County would deprive Pictometry of its direct sale market. In other words, if a real estate broker or land use planner could acquire images of the entire county on CD from the County for only the cost of reproduction they would not purchase those images from Pictometry. (You will also note that in the above set forth provision from Schedule B of the proposed agreement, as it applies to digital and electronic copies, the pricing is based on a per image basis, not on a per CD basis. Thus, assuming we copied 30 images on a single CD, the proposed clause would require that we charge a commercial user $1,500.00 for that single CD, and then remit $750.00 to Pictometry.)" (emphasis yours).

In response to that concern, you asked whether, "in generating copies of the Pictometry images for sale on a CD, the images were in [a] standard format, or whether the copy would have to include embedded Pictometry software." You were told that the Pictometry software would have to be used, but that Pictometry "could have designed its product so that it could be electronically copied and used as a...standard protocol, file, without their proprietary software." You were also informed that "that they had intentionally designed the product so that it required the use of their software...expressly for marketing and pricing purposes." You concluded that, "[i]n other words, they had designed the product in such a way that they could argue that the sale of a copy involved the sale of trademarked/copyrighted, proprietary software and, therefore, that they had the right to set the fee schedule." You wrote that you expressed concern to Pictometry that:

"...by entering into an agreement to charge $20 to $50 per image, under circumstances where we knew that such images could, in fact, have been made available without the need to embed Pictometry software, had Pictometry used a commercially available format, the County might, in effect, be viewed as conspiring with Pictometry to evade the requirements of FOIL. Moreover, since, as a result of what Mr. Kaplan told me, we now knew the copying charges were deliberately set at a level high enough to discourage FOIL requests and encourage people to purchase directly from Pictometry, that too, I believed, would render the clause unlawful."

In consideration of the foregoing, you raised the following question:

"Where a FOIL request is made of the County for a digital copy of date stored in digital format, but where the vendor who initially provided that data deliberately provided the data to the County in such a way that digital copies could not be made and utilized without employing the vendor’s proprietary software, may the County agree with the vendor to charge fees set by the vendor for such copies, and may the County remit a portion of such copying fees to the vendor?"

My response must be the same as that offered earlier in this opinion, that the Freedom of Information Law authorizes an agency to charge only for the reproduction of records. Just as an agency cannot charge a fee for photocopies based in part on the cost of purchasing a photocopy machine, I do not believe that it could properly charge for the cost of software. I do not believe the "sale" or production of a copy can be equated with the sale of proprietary software. Again, in my view, any agreement that authorizes the assessment of a fee greater than the actual cost of reproduction would be inconsistent with law and, therefore, invalid. I note, too, that §84 of the Freedom of Information Law, the statement of legislative intent, indicates that state and local government agencies are required to make records available "wherever and whenever feasible." From my perspective, if unnecessarily increasing a fee results in a lesser opportunity for members of the public to gain access to records, such an action would tend to defeat the intent of the law.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Paul Burkhard