July 31, 2008
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, unless otherwise indicated.
As you are aware, I have received your correspondence concerning a request for records made to the Village of Hempstead. Please accept my apologies for the delay in response. The issues, as I understand them, involve the payment for photocopies of records that you requested, and the obligation of the Village to transmit records via fax.
In this regard, to learn more of the matter, I have contacted the Village and spoken with Mr. Herbert Tamres, Deputy Village Attorney. As I understand the situation, a request was made in late May for all records pertaining to a particular project. In response, the Village Clerk indicated that approximately 590 pages had been located and that the fee for copies at the rate of twenty-five cents per photocopy would be $148. You then asked and the Village agreed to permit your representative to inspect the records before preparing copies. He did so and apparently left instructions to have 240 pages copied and sent to you. After the copies were prepared, you asked that the records be sent to you via fax. From my perspective, because copies were requested and prepared, the Village is owed the fee, $60, for doing what it was asked to do.
With respect to faxing records sought pursuant to the Freedom of Information Law, there is nothing in that statute that addresses the issue. That being so, this office has advised that a standard based on reasonableness in consideration of the facts and circumstances is most appropriate. As you know, when a fax machine is used either to accept or transmit material, the machine cannot be used for any other function. Because that is so, it has been advised, for example, that when a fax machine is used for a dedicated purpose, as in the case of a law enforcement agency using its fax machine only for specific or emergency purposes, that the agency is not required to accept or transmit requests through use of that machine. In the context of the situation that you described, it would be unreasonable in my opinion, even if photocopies had not already been made, to fax as many as 240 pages. In short, the process of feeding paper into the machine is labor intensive, and the machine would be disabled for any other use, including the receipt of records that may be important, for an extended period of time.
I hope that foregoing serves to clarify the matter and that I have been of assistance.
cc: Herbert J. Tamres, Deputy Village Attorney
Tanya L. Ford, Village Clerk