February 6, 2009
We are in receipt of your request for guidance regarding the recently enacted provisions of the Freedom of Information Law pertaining to the ability of an agency to calculate and charge an applicant the “actual cost” of reproducing records, as set forth in §87(1). In particular, you seek clarification of when an agency can pass on actual costs, what actual costs might entail, and our opinion regarding the “hourly salary attributed to the lowest paid employee who has the necessary skill required to prepare a coy of the requested record.” In this regard, we offer the following comments.
Briefly, as background, although compliance with the Freedom of Information Law involves the use of public employees' time and perhaps other costs, shortly after the Freedom of Information Law was enacted, the Court of Appeals found that the law is not intended to be given effect "on a cost-accounting basis", but rather that "Meeting the public's legitimate right of access to information concerning government is fulfillment of a governmental obligation, not the gift of, or waste of, public funds" [Doolan v. BOCES, 48 NY 2d 341, 347 (1979)].
Until August of 2008, the law permitted an agency to charge an applicant twenty-five cents per photocopy not in excess of nine by fourteen inches, or the actual cost of reproducing any other record, except when a different fee was prescribed by statute, without further guidance (§87[b]). In addition, the regulations promulgated by the Committee on Open Government state in relevant part that:
“(a) There shall be no fee charged for the following:
(1) inspection of records;
(2) search for records; or
(3) any certification pursuant to this Part.
(b) An agency may provide copies of records without charging a fee.
(c) An agency may charge a fee for copies of records, provided that:
(1) fee for copying records shall not exceed 25 cents per page for photocopies not exceeding 9 by 14 inches. This section shall not be construed to mandate the raising of fees where agencies or municipalities in the past have charged less that 25 cents for such copies;
(2) the fee for copies of records not covered by paragraphs (1) and (2) of this subdivision, shall not exceed the actual reproduction cost which is the average unit cost for copying a record, excluding fixed costs of the agency such as operator salaries” (21 NYCRR §1401.8).
Further §1401.8(c)(3) stated in relevant part that “the actual reproduction cost ... is the average unit cost for copying a record, excluding fixed costs of the agency such as operator salaries.”
Based upon the foregoing, it has been held that the actual cost of reproducing a tape recording would involve only the cost of a cassette (see Zaleski v Hicksville Union Free School District, Supreme Court, Nassau County, December 27, 1978). Accordingly, it has long been our opinion that the fee for reproducing electronic information would involve the cost of the information storage medium (ie., a computer disk or drive to which data is transferred), not the salaries of persons involved in downloading the data.
This analysis changed in August of 2008, when the Freedom of Information Law was amended to include new parameters for calculating the “actual costs of reproducing” records. A new §87(1)(c) provides as follows:
“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.
In sum, paragraph (c) now sets forth parameters for determining the actual cost of reproducing records other than paper records not in excess of nine by fourteen inches. When it takes an agency employee more than 2 hours to prepare such record, the agency is permitted to pass on either the hourly wage of the lowest paid employee capable of preparing the record, multiplied by the number of hours the employee spent preparing the record, and the cost of the storage device or media provided to the applicant, or, when the agency does not have adequate information technology equipment to prepare a copy, the actual cost of engaging an outside professional service. In the event that more than 2 hours of employee time is necessary to prepare a record, or if it is necessary to retain an outside professional, the agency is required to inform the applicant prior to incurring the cost of preparing the record.
The new language continues to differentiate between records that can be photocopied and are not in excess of nine by fourteen inches, and “other” records, for which the actual cost of reproduction may be charged. Accordingly, it is our opinion that an agency may charge the actual cost of reproducing a record for all records except those that are photocopied and that are less than nine by fourteen inches. If it takes an agency more than two hours to photocopy paper records, for example, the agency would not be permitted to charge for employee time. On the other hand, if it is necessary to take more than 2 hours to prepare photocopies of paper records that exceed nine by fourteen inches or electronic records, the agency would be permitted to pass on the cost of the salary of the lowest paid employee capable of performing the work, for the hours spent preparing the records. When preparation of a paper record in excess of nine by fourteen inches or an electronic record requires less than two hours time, the agency is permitted to charge only the actual cost of the storage devices or media provided to the applicant. In the former case, in our opinion this would be the cost of the paper, in the latter, the cost of a disk or tape.
With respect to your questions regarding an agency’s determination of “the hourly salary attributed to the lowest paid agency employee who has the necessary skill required to prepare a copy of the requested record,” we believe that every law must be implemented in a manner that gives reasonable effect to its intent. In its statement of legislative intent, §84 of the Freedom of Information Law states that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible." Accordingly, it is our advice that when an agency is faced with the extended absence of the lowest paid agency employee with the necessary skill to prepare the record, the agency should contact the applicant and inform him or her of the option to pay the actual cost of reproduction at a higher rate now, or to wait for the return of the employee on leave and pay the lower rate.
On behalf of the Committee on Open Government, we hope that this is helpful to you.
Camille S. Jobin-Davis