August 20, 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 facts presented in your correspondence.
I have received your letter and the materials attached to it. Please accept my apologies for the delay in response.
You referred to a request to scan records maintained by the City of Poughkeepsie into your laptop computer. You did so for three days but had equipment problems on the fourth day. On the fifth, you were told that you could no longer scan the records, and that the records would be made available upon payment of a fee covering duplication and postage. You have sought assistance in the matter.
From my perspective, as a general matter, a municipality has the ability to adopt rules to implement and govern the manner in which it carries out its duties. So long as those rules are reasonable and not inconsistent with law, I believe that they would be valid. As you are aware, in a decision concerning a situation in which a village adopted rules prohibiting requesters from using their own photocopiers, it was held that the rules "constitute a valid and rational exercise of the Village's authority under Public Officers Law §87(1)(b)" [Murtha v. Leonard, 620 NYS 2d 101,102; 210 AD2d 411 (1994)]. In my opinion, the decision was based upon the reasonableness of the rules in view of attendant facts and circumstances. In situations in which an agency does not have sufficient resources or cannot carry out its duties effectively due to the use or presence of a personal copier without disruption, it might be found, as indicated in Murtha, that a prohibition against the use of scanner would be valid.
In the context of your inquiry, I cannot offer an unequivocal response. There may be circumstances in which, due to the nature of the records sought, their volume, their location, the workload of the City staff and similar factors, the use of one’s own scanner may be disruptive. There may be other instances, however, in which the attendant facts suggest that the use of a scanner might not be disruptive. In those cases, it may be unreasonable to prohibit the use of a personal photocopier.
I note, too, that it has been advised by this office and held judicially that an agency cannot limit the ability of the public to inspect records to a period less than its regular business hours. By way of background, §89 (1)(b)(iii) of the Freedom of Information Law requires the Committee on Open Government to promulgate regulations concerning the procedural implementation of the Law (see 21 NYCRR Part 1401). In turn, §87 (1) requires agencies to adopt rules and regulations consistent with the Law and the Committee’s regulations.
Section 1401.4 of the regulations, entitled “Hours for public inspection”, states that:
“(a) Each agency shall accept requests for public access to records and produce records during all hours they are regularly open for business.”
Relevant to the matter is Murtha, the decision cited earlier in which an issue was the validity of a limitation regarding the time permitted to inspect records established by a village pursuant to regulation. The Court held that the village was required to enable the public to inspect records during its regular business hours, stating in part that:
“...to the extent that Regulation 6 has been interpreted as permitting the Village Clerk to limit the hours during which public documents can be inspected to a period of time less than the business hours of the Clerk’s office, it is violative of the Freedom of Information Law...”
Based on the foregoing, the City, in my view, cannot limit your ability to inspect records to a period less than its regular business hours. I do not believe, however, that a member of the public may designate the date or dates on which he or she seeks to review records. If, for instance, records will be in use by staff on a particular date or during a particular period of time, an agency would not, in my view, be required to alter its schedule or work plan. In that instance, the agency could offer a series of dates to the person seeking to inspect the records in order that he or she could choose a date suitable to both parties. Similarly, if a request involves a variety of items, while the applicant may ask that certain records be made available sooner than others, I do not believe that he or she can require an agency to make records available in a certain order.
I hope that I have been of assistance.
Robert J. Freeman
cc: Stella Isaza