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October 31, 2008

E-Mail


TO:

FROM: Camille S. Jobin-Davis, Assistant 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

            We are in receipt of your request for an advisory opinion concerning application of the
Freedom of Information Law to a request for records made to a school district. You wrote that the
school district “wanted to charge me for photocopies of documents that were available by e-mail”,
and asked: “Are they allowed to do that?” In this regard, we offer the following comments.

            In 2006, the Freedom of Information Law was amended, stating in relevant part that: “All
entities shall, provided such entity has reasonable means available, accept requests for records
submitted in the form of electronic mail and shall respond to such requests by electronic mail...”
Based on the new provision, agencies, such as school districts, are required to transmit requested
records via email, when they have the ability to do so with reasonable effort.

            More recently, a new provision was adopted which defines, for the first time, the basis for
determining the actual cost of reproducing records maintained electronically. For many years,
§87(1)(b)(iii) of the Freedom of Information Law permitted a school district to charge a maximum
of twenty-five cents per photocopy, or the actual cost of reproducing other records, i.e., those that
are not or cannot be photocopied. The new provisions balance the public interest in gaining access
to computerized records at low cost with the tasks carried out by agencies when making those
records available.

            In most instances, the actual cost of reproducing an electronic record involves only the cost
of the storage medium in which the information is made available, i.e., a computer tape or disk.
When the materials can be emailed, in our opinion, there would be no “actual costs” of reproduction
because the records are not photocopies and a storage medium is not involved. However, in those
instances in which substantial time is needed to prepare the copy, at least two hours of an employee’s
time, §87(1)(c) now permits an agency to charge a fee based on the cost of the storage medium used,
as well the hourly salary of the lowest paid employee who has the skill needed to do so. This change
in FOIL for the first time authorizes agencies to determine and assess a fee to be charged on the basis
of an employee’s time, but only when at least two hours of an employee’s time is necessary to
prepare records.

            The new legislation defines “preparation” of the record, prohibiting an agency from charging
for “search time or administrative costs” [§87(1)(c)(iv)]. Further, the statute now clarifies that “[a]ny
programming necessary to retrieve a record maintained in a computer storage system and to transfer
that record to the medium requested by a person or to allow the transferred record to be read or
printed shall not be deemed to be the preparation or creation of a new record.” [§89(3)(a)].

            Accordingly, it is our opinion that an agency may charge for employee time spent extracting or
segregating data from an electronic database, but not for redacting or transferring the record to the
requested medium. In sum, an agency may now require an applicant to pay for employee time spent
on programming necessary to retrieve data.

            Accordingly, it is our opinion that if the records are to be emailed, and if their preparation
involves less than two hours, the agency has no authority to charge a fee.

            Please take note that if the records that you requested include information that must be
disclosed, as well as information that may be withheld, the only method of transmitting those
portions that are accessible to the public may involve the preparation of a photocopy, from which
the appropriate redactions would be made. 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 without payment (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, we 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. Further, it is our opinion that if the agency does not have the ability to make secure
redactions electronically, it would not be obliged to purchase software to do so.

            In conclusion, it is our opinion that an agency such as a school district may not require
payment for records transmitted electronically, unless the recently adopted “actual cost” provisions
apply, and that if the agency cannot redact electronic records electronically, it may require payment
for photocopies of records from which redactions were made.


            On behalf of the Committee on Open Government, we hope that this is helpful to you.


CSJ:jm