September 8, 2008
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 and hope that you will accept my apologies for the delay in response.
You have sought my views concerning a response to your request for copies of financial disclosure statements pertaining to officers and employees of the Town of North Hempstead. In brief, you were informed that the financial disclosure forms include items that could be withheld on the ground that disclosure would constitute “an unwarranted invasion of personal privacy”, and that, in order to gain access, photocopies would be prepared, from which the appropriate deletions would be made. However, due to the necessity to make copies, you were told that the cost, in consideration of the number of records sought, would be nearly five-hundred dollars. That being so, you suggested that the Town could design a form that would contain all of the information that could be withheld separate from the remainder, thereby enabling the public to inspect those pages that do not include deniable information with no charge.
In this regard, although your suggestion, in my view, has merit, I do not believe that there is any requirement that the Town revise its form to enhance its accountability to the public or reduce the fee for copying. As you may be aware, 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, when requested records are accessible in their entirety, I do not believe that a fee may assessed to when the request is to inspect the records.
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, 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, but that the agency could charge a fee for preparing a photocopy.
Notwithstanding the foregoing, numerous situations have arisen in which agencies have chosen to design forms in manner in which those items that may be withheld appear on different pages from those that available in their entirety. Action of that nature clearly diminishes the effort that must be expended by a government employee who responds to a request made under the Freedom of Information Law, and further, enhances the ability of the public to obtain records accessible by law efficiently, often without the assessment of a fee. I note, too, that use of a form designed to separate the public from the deniable information would be fully consistent with a recent amendment to the Freedom of Information Law that deals with the design of electronic information systems. A new §89(9) provides as follows:
“When records maintained electronically include items of information that would be available under this article, as well as items of information that may be withheld, an agency in designing its information retrieval methods, whenever practicable and reasonable, shall do so in a manner that permits the segregation and retrieval of available items in order to provide maximum public access.”
I hope that I have been of assistance.
Robert J. Freeman
cc: Richard S. Finkel