March 31, 2006
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 information presented in your correspondence.
I have received your letter in which you wrote that Westchester County "charges an annual access fee for online viewing of Public Land Records of $1089.00." You asked whether doing so is "allowable under FOIL."
In this regard, §87(1)(b)(iii) of the Freedom of Information Law deals with the fees that agencies may charge for reproducing records, and it contains two components. One deals with photocopies of records up to nine by fourteen inches, in which case, as you are aware, an agency may charge a maximum of twenty-five cents per photocopy. The other involves any other records, i.e., those larger than nine by fourteen inches or those that cannot be reproduced by means of photocopying, such as tape recordings or computer tapes or disks, in which case the fee is based on the "actual cost" of reproduction.
As I understand the situation, the fee does not involve the reproduction of records, but rather a service provided by the County in which the public is offered online access to records. From my perspective, there is nothing in the Freedom of Information Law that requires agencies to make records available online via the internet. When they choose to do so, they would be acting above and beyond the responsibilities imposed upon them by law, and in those cases, the provisions in the Freedom of Information Law pertaining to fees, in my view, do not apply.
Until the law is changed, I believe that the County’s charge is permissible.
I hope that the foregoing serves to enhance your understanding of the matter and that I have been of assistance.