September 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 hope that you will accept my apologies for the delay in response. You have sought an advisory opinion concerning the policy of the City of Ithaca concerning the assessment of fees in relation to requests for records of the City’s Police Department.
According to your letter, the Ithaca Journal “filed 22 separate FOIL requests” for “multiple types of...reports generated” during a certain period, and that each request requires the review of the content of the records to determine which portions require or permit redaction. Following redactions made by hand, copies are made. You added that the Department’s forms “are not deliberately set up such that redactable information appears on the same page as non-redactable information,...nor would it be practical to do so.”
In response to a series of requests for records, many of which involved redactions, “[o]f their 198 pages of records...requested”, the Journal reporter “said he wanted copies of only 63 pages (and would only pay for those pages).” Although the City acceded to that request, you “subsequently issued a notice to the Journal that in the future [the City] would provide copies (of redacted records) only if the entire set (of requested records) were paid for.”
In this regard, I offer the following comments.
First, pursuant to §87(2) in conjunction with §87(1)(b)(iii) of the Freedom of Information Law concerning fees for copies, when a record is available in its entirety under the Freedom of Information Law, any person has the right to inspect the records at no charge. That being so, if among requested records, certain of them are accessible in their entirety, I do not believe that the City may assess a fee when the request is to inspect the records.
As you pointed out, however, there are many instances in which portions of records may properly be redacted in accordance with the exceptions to rights of access delineated in §87(2). In those situations, it has been advised by this office and held judicially that the applicant does not have the right to inspect the records (see VanNess v. Center for Animal Care and Control, Supreme Court, New York County, January 28, 1999). Rather, in order to obtain the accessible information contained within records that have undergone redaction, upon payment of the established fee, I believe that the agency would be obliged to disclose those portions of the records after having made appropriate deletions from a copy of the record.
I hope that I have been of assistance.
Robert J. Freeman