March 21, 2007
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 facts presented in your correspondence.
Dear Mr. Hughes:
I have received your letter in which you asked whether you are “allowed to bring in [your] camera and take digital photos of any records that [you are] inspecting” and whether you can “be prohibited from taking notes while viewing records.”
From my perspective, there is no basis for precluding you from copying records through the use of your own camera or taking notes. Section 87(2) of the Freedom of Information Law specifies that accessible records must be made available for inspection and copying. I note, too, that §§87(1)(b)(iii) and 89(3) indicate that the only fee that an agency can charge involves its reproduction of records at the request of an applicant. Further, the regulations promulgated by the Committee on Open Government, which have the force and effect of law (21 NYCRR Part 1401), specify that no fee may be charged for the inspection of records.
In short, there is no prohibition concerning the ability to copy the contents of records by hand. Further, your use of a camera, due to its size and independent power source, would not involve any use of agency resources or disruption of its activities different from inspection of records.
In good faith, I note that it has been held that a rule prohibiting the use of one's own photocopier has been found to be valid and reasonable when such use would cause disruption [see Murtha v. Leonard, 210 AD2d 411 (1994)]. However, the use of a camera is different, for there would be no use of the an agency's space or electricity, and there would be no distinction in terms of the agency's efforts in retrieving the records between the more traditional inspection of records and the use of your camera. In short, I believe that a prohibition of the use of your camera would be unreasonable and inconsistent with law.
I hope that I have been of assistance.