August 28, 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.
I have received your letter in which you questioned the propriety of a fee sought to be charged by the Village of Earlville in response to your request for records pursuant to the Freedom of Information Law. Your request involves minutes of meetings of the Board of Trustees, and you were informed that “your request will likely take two to three hours to read through the past meeting minutes and identify your request.” In consideration of amendments to. the Freedom of Information Law that were recently enacted, you were also told that “FOIL requests that take more than two hours, will incur a cost of $12.31 per hour.”
It appears that the new provisions in the law have been misinterpreted. When a request is made to inspect or copy paper records, the law has not changed. In short, inspection of records is free, and no search or administrative fee may be imposed. When photocopies are requested, unless a statute other than the Freedom of Information Law applies, the maximum that may be charged for records up to nine by fourteen inches remains twenty-five cents per photocopy.
Specifically, §87(1)(b)(iii) refers to “the fees for copies of records which shall not exceed twenty-five cents per photocopy not in excess of nine by fourteen inches, or the actual cost of reproducing any other record...” (emphasis added). “Any other record” would involve that which is larger than nine by fourteen inches or which is maintained and reproduced electronically. Only in that latter circumstance would new provisions involving the actual cost of reproduction authorize an agency to charge a fee based on the salary of an employee or outside service. Further, the new provisions concerning the actual cost of preparing copies of records specify that “preparing a copy shall not include search time or administrative costs” [see §87(1)(c)(iv)].
In consideration of the response to your request, I point out that although the Freedom of Information Law as initially enacted required that an applicant must seek “identifiable” records, since 1978 it has merely required that an applicant “reasonably describe” the records sought. Moreover, it has been held by the Court of Appeals, the state’s highest court, that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].
The Court in Konigsberg found that the agency could not reject the request due to its breadth and also stated that:
"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system: whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency'])" (id. at 250).
In my view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate's name and identification number.
In Ruberti, Girvin & Ferlazzo v. Division of State Police [218 AD2d 494, 641 NYS2d 411 (1996)], one element of the decision pertained to a request for a certain group of personnel records, and the agency argued that it was not required to search its files those requested "because such records do not exist in a 'central file' and, further, that FOIL does not require that it review every litigation or personnel file in search of such information" (id., 415). Nevertheless, citing Konigsberg, the court determined that:
"Although the record before this court contains conflicting proof regarding the nature of the files actually maintained by respondent in this regard, an agency seeking to avoid disclosure cannot, as respondent essentially has done here, evade the broad disclosure provisions FOIL by merely asserting that compliance could potentially require the review of hundreds of records" (id.).
If Village staff can locate the records of your interest with reasonable effort analogous to that described above, it would be obliged to do so. As indicated in Konigsberg, only if it can be established that the Village maintains its records in a manner that renders its staff unable to locate and identify the records would the request have failed to meet the standard of reasonably describing the records.
I would conjecture that minutes of meetings of the Board of Trustees are kept chronologically and that the items of your interest involve entries in the minutes involving a relatively brief period of time that you have the ability to suggest. If that is so, it would appear that your request would have reasonably described the records and that the Village would be required locate and retrieve them in response to the request.
In an effort to enhance understanding and compliance with the Freedom of Information Law, a copy of this opinion will be sent to Mayor Campbell and the Village Clerk.
I hope that I have been of assistance.
cc: Hon. Toni Campbell, Mayor