May 14, 2007
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.
As you are aware, I have received your letter, and I hope that you will accept my apologies for the delay in response.
You wrote that several school districts that you represent have received requests pursuant to the Freedom of Information Law for “legal bills” to be transmitted “in e-mail form.” However, portions of those records may include information that is subject to the attorney-client privilege or the provisions of the Family Educational Rights and Privacy Act and, therefore, are exempted from disclosure [see Freedom of Information Law, §87(2)(a)]. That being so, you indicated that: “In order to provide this information, the districts must make paper copies of these bills in order to redact information that is made privileged or confidential...before scanning redacted information for e-mail purposes.”
You have requested an advisory opinion confirming the advice offered verbally by Ms. Jobin-Davis of this office, that an agency “is entitled to charge the requestor the statutory fee of 25 cents per page for copying costs in connection with complying” with such a request.
In this regard, as you are aware, the Freedom of Information Law was recently amended, stating in relevant part that: “All entities shall, provided such entity has reasonable means available, accept requests for records submitted in the form of electronic mail and shall respond to such requests by electronic mail...” Based on the new provision, agencies, such as school districts, are required to transmit requested records via email, when they reasonably have the ability to do so.
As I understand the situation that you described, the records at issue include information that must be disclosed, as well in some instances as information that is exempted from disclosure by statute. Further, in those instances, the only method of transmitting those portions that are accessible to the public would involve the preparation of a photocopy, from which the appropriate redactions would be made, and then transmitting the remaining portions via mail. If that is so, and if a photocopy must first be made in order to transmit the accessible portions of a document by means of email, I believe that an agency has the authority to charge a fee for photocopying. As you are aware, §87(1)(b)(iii) authorizes an agency to charge up to twenty-five cents for a photocopy as large as nine by fourteen inches.
I hope that I have been of assistance.
Robert J. Freeman