August 24, 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 information presented in your correspondence.
Dear Mr. Mitts:
As you are aware, I have received a variety of correspondence concerning your requests made under the Freedom of Information Law to the Village of Brewster.
The issue that you raised relates to a request to gain access to contracts pertaining to the construction of a wastewater treatment plant. You wrote that some of the documents made available were not among those requested, and that, “upon inspection, it appeared to [you] that in excess of 4,000 pages consisted of plans and specifications relating to the plant.” Although you specifically excluded the plans and specifications from your request, you were informed that the Village Clerk “was under no obligation to undertake a detailed examination of the documents being copied to determine what items should be excluded from the request”, and that “in an ‘abundance of caution’ it was determined that everything should be produced.” You were informed in response to a different request that it would not be honored “until [you] paid for the 6,400 pages that already been copied, including the plans and specifications that [you] had excluded from [your] request.”
You wrote that “it was clear from [your] examination of the contracts [you] requested that the plans and specifications were easily identifiable, so that any effort to exclude these from the copying process would be de minimis.” Consequently, you have sought an opinion suggesting that you “should not be required to pay for the copies of these items as a condition precedent to receiving the balance of [your] FOIL requests.”
In this regard, many situations have been brought to the attention of this office in which a large volume of records is requested, and upon inspection and review, the applicant determines that s/he would like copies of a small number of pages. For instance, it has been suggested that those interested in audits that may consist of hundreds of pages review them in order to determine which portions he or she might want to have copied. That kind of exercise is, in my view, beneficial to both the applicant and the government agency in receipt of the request, for the applicant is able to diminish what would otherwise be a substantial fee for copying, and the agency reduces the labor associated with copying the records.
In this instance, it appears that you reviewed the records and specified that you did not want copies of certain portions. Assuming that your contention is accurate, that the plans and specifications that you did not want to be copied are “easily identifiable”, I do not believe that you can justifiably be required to pay for copies for those portions of the records. In short, if Village officials had the ability, with reasonable effort, to segregate those portions of the records that you did not want to be copied, it would have been unreasonable, in my view, to copy them nonetheless and impose a fee of twenty-five cents per photocopy. Further, if you have paid for the copies of the records that you did in fact ask to be copied and owe the Village no additional monies, I believe that the Village would be required to honor any pending or future requests. I note that it has been advised and held judicially that an agency may require payment of the requisite fees in advance of the preparation of copies of requested records (see e.g., Sambucci v. McGuire, Sup. Ct., New York County, Nov. 4, 1982).
I hope that the foregoing serves to resolve the matter and that I have been of assistance.
cc: Peter B. Hansen