January 22, 2007
FROM: Camille S. Jobin-Davis, Assistant 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.
We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to requests made for your town’s tentative budget, and subsequently, for the preliminary budget . It appears the Town Board had not yet seen the tentative budget at the time of your request. You indicated that you were required to submit a written request and pay twenty-five cents per page for a copy of the tentative budget, but not required to submit either a written request or payment for a copy of the preliminary budget. You questioned whether this “inconsistent treatment regarding the two forms of the budget [is] warranted?” In this regard, we offer the following comments.
First, as a general matter, the Freedom of Information Law is based upon a presumption of access, and includes all agency records within its coverage. Section 89(3) of the Law states in part that an agency may require that a request be made in writing. Therefore, while an agency may accept an oral request, we believe that it may require a written request.
We note that §106(4) of the Town Law provides that “[t]he preliminary budget shall be filed in the office of the town clerk and the town clerk shall reproduce for public distribution as many copies as the town board may direct.” In addition, as you know, the town board must hold a public hearing on the preliminary budget in accordance with §108 of the Town Law. That statute states in relevant part that:
"Notice of such public hearing shall be published at least once in the official newspaper, or if no official newspaper has been designated, in any newspaper having general circulation in the town....The notice of hearing shall state the time when and the place where the public hearing will be held, the purpose thereof and that a copy of the preliminary budget is available at the office of the town clerk where it may be inspected by any interested person during office hours...The town clerk shall cause a copy of the notice to be posted on the signboard of the town, maintained pursuant to subdivision six of section thirty of this chapter, not later than five days before the day designated for such hearing....”
Based on those provisions, we do not believe that a written request should be needed to inspect the preliminary budget, because the right to inspect is clearly conferred by Town Law; however, a town could, in our opinion, require that a written request be made if a copy of the tentative budget is requested, for the law makes no specific reference to publication of the tentative budget.
Finally, there is nothing in the Freedom of Information Law with respect to the waiver of fees for copies of records. However, again, because the right to inspect the preliminary budget is clearly conferred by Town Law, it is our opinion that the Town could require payment for a copy of the tentative budget, and subsequently provide free copies of the preliminary budget.
On behalf of the Committee on Open Government, we hope this is helpful to you.