January 6, 2009
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 received your correspondence relating to a request made to the New York City Council by a New York Times (“The Times”) reporter in July for the Council’s legislative database. Although the request was approved in part, the reporter was initially informed that the “cost of copying the database is $2,500.” The portion of the request involving the “system’s framework and source codes” was denied on the ground that they “are the vendor’s trade secrets the disclosure of which would give its competitors a substantial advantage in bidding for contracts.” Following the receipt of that response and discussions between The Times and Council staff, it was determined that the database is public, and The Times entered into a nondisclosure agreement in order to guarantee the protection of the vendor’s proprietary software. When the amount of the fee was questioned, it was asserted by the Vendor that “The Times must pay $4,300 before receiving the database in its simplest usable format.” Although the vendor prepared a breakdown of that figure, it is your view that the fee sought to be charged is “clearly impermissible under FOIL.”
Based on a review of the correspondence and extant facts, I agree with your contention and offer the following comments.
As you are aware, the Freedom of Information Law (“FOIL”) was recently amended with respect to fees that can be assessed by an agency when making records available. When records are maintained electronically, an agency may charge a fee based on the “actual cost of reproduction”, and §87(1)(c) provides that:
“In determining the actual cost of reproducing a record, an agency may include only:
i. an amount equal to the hourly salary attributed to the lowest paid agency employee who has the necessary skill required to prepare a copy of the requested record;
ii. the actual cost of the storage devices or media provided to the person making the request in complying with such request;
iii. the actual cost to the agency of engaging an outside professional service to prepare a copy of a record, but only when an agency’s information technology equipment is inadequate to prepare a copy, if such service is used to prepare the copy; and
iv. preparing a copy shall not include search time or administrative costs, and no fee shall be charged unless at least two hours of agency employee time is needed to prepare a copy of the record requested. A person requesting a record shall be informed of the estimated cost of preparing a copy of the record if more than two hours of an agency employee’s time is needed, or if an outside professional service would be retained to prepare a copy of the record.”
From my perspective, a critical flaw in the response by the Council concerning the fee involves the fact that the Council would not be “engaging an outside professional service to prepare a copy...” The database has been and continues to be maintained pursuant to a contract between the Council and the vendor, Daystar Computer Systems, that had been in effect prior to The Times’ request. That being so, there was no need for the Council to engage in a second or different outside professional service.
Significant under the circumstances is FOIL’s broad definition of the term “record.” An agency record, according to §86(4), includes:
"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes" (emphasis added).
The vendor in this instance was retained by the Council to maintain the Council’s database. Because that is so, I believe that the database, in terms of rights of access, and the cost of reproduction, must be as if it is in the physical custody of the Council. The vendor is, in essence, an extension of the Council, and the database is clearly a Council record. The facts do not indicate that reproducing the database would involve retaining another service to satisfy The Times’ request. Rather, the vendor was retained prior to the request, and because it maintains the database “for” the Council, it is, for purposes of honoring the request, standing in the shoes of and serving as the alter ego of the Council. Stated differently, in my opinion, the provisions in subparagraphs (iii) and (iv) of §87(1)(c) concerning engaging or retaining an outside professional service do not apply and are irrelevant in determining the fee.
Another amendment to FOIL, §87(5)(b), states that “No agency shall enter into or renew a contract for the creation or maintenance of records if such contract impairs the right of the public to inspect or copy the agency’s records.” The database, according to the definition of “record”, consists of the “agency’s records”, and the clear intent of the amendment is to ensure that a contract with an entity retained by an agency cannot serve to diminish public rights of access. In this case, the fee sought to be imposed would, in my view, clearly impair the public’s right to obtain a copy of the records at issue. Because the database consists of the Council’s records, irrespective of its physical location, and for the reasons discussed in the preceding commentary, I believe that the actual cost of reproduction must be determined in the same manner as if doing so could be accomplished by Council staff.
The breakdown indicating the basis of the fee, as you suggested, refers to elements that cannot be included in determining the amount of the fee. Subparagraph (iv) of §87(1)(c) specifies that “preparing a copy shall not include search time or administrative costs...” While I must admit to being unfamiliar with the meaning of several elements appearing in the “line item” breakdown, clearly attorney fees cannot be included as part of “preparing a copy.” Other items, such as “admin support” and “project management” do not appear to be aspects of “preparing a copy”, and there may be other line items that do not involve doing so.
Paragraph (a) of §87(5) states that: “An agency shall provide records on the medium requested by a person, if the agency can reasonably make such copy or have such copy made by engaging an outside professional service. Records provided in a computer format shall not be encrypted.” Based on her letter addressed to you on December 23, Elizabeth R. Fine, General Counsel to the Council, wrote that the data could not be made available in the format requested by The Times’ reporter, because doing so would include “data source codes”.
If my understanding of the matter is accurate, the data can be made available in the format requested, but with data source codes. However, in consideration of the nondisclosure agreement concerning the vendor’s proprietary software, it appears that the issue concerning disclosure of data source codes is now moot. If that is so, and if disclosure, as you suggest, can be accomplished merely by transferring the data from one electronic storage medium to another, and assuming that doing so would involve less than two hours time, in my opinion, the only fee that may be charged would be “the actual cost of the storage devices or media provided to the person making the request...” [§87(1)(c)(ii)]. If doing so would involve more than two hours time, in consideration of the existing contractual relationship between the Council and the vendor and, therefore, the absence of any need to engage a different outside professional service, I believe that the fee should be based on the hourly salary of the lowest paid employee or employees of the vendor having the skill required to prepare a copy of the database in accordance with §87(1)(c)(i), plus the cost of the storage media as prescribed by §87(1)(c)(ii).
In an effort to resolve the matter, a copy of this opinion will be sent to Ms. Fine.
I hope that I have been of assistance.
Robert J. Freeman
cc: Elizabeth R. Fine -