March 4, 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.
As you are aware, I have received your letter in which you requested an advisory opinion involving access to records and the fees that may be charged for copies of the records.
The first issue that you raised concerns the propriety of a fee sought to be imposed by the Office of Real Property Services (ORPS) for its real property tax database, including inventory data. According to your letter, you were informed that, in order to obtain the records, you “would have to make payment of approximately $700, excluding data from New York City, and substantially more if that was included”, and that ORPS “had calculated a price to charge based on the number of megabytes of data released.”
From my perspective, the establishment of a fee based on the number of megabytes of data disclosed is inconsistent with law. In this regard, the Freedom of Information Law, particularly in consideration of amendments recently enacted, provides direction concerning fees that may be charged by agencies when records and/or data are requested and made available. Section 87(1)(b) has long provided that an agency may charge up to twenty-five cents per photocopy not in excess of nine by fourteen inches, or the actual cost of reproducing any other record, i.e., a record that is larger than nine by fourteen inches or that is maintained electronically, unless a different fee is prescribed by statute. An amendment to §87(1)(b) now refers to “the actual cost of reproducing any other record in accordance with the provisions of paragraph (c) of this subdivision.” Paragraph (c) is new and among the amendments now in effect, and it states 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.”
As I interpret the foregoing in relation to your request, if preparation of the database that you request involves two hours or more, ORPS, which has indicated that it has the ability to do so, may assess a fee based on the hourly salary of the lowest paid employee who has the skill required to do so, plus the cost of the storage media to which the data is transferred, i.e., a cd. If ORPS has the ability to prepare the database in less than two hours, the fee should be based on the cost of the storage media. Again, the amount of data requested or made available does not serve as the basis for determining the fee that may be charged by an agency. Rather, the fee must, in my opinion, be based on and consistent with the amendments the Freedom of Information Law referenced in the preceding remarks.
Next, “if a municipality has not produced this data for a FOIL request previously, and must do some initial work to set it up, but then only a small additional bit of work to copy it to a disk for each subsequent request”, you asked whether that agency may”bill [you] for the initial setup time, or only the additional time that would have been required had [you] been the second or third requestor.” In my view, the provisions of §87(1)(c) provide guidance. If the initial effort to prepare the record involves more than two hours, the agency could charge on the basis of employee time and the cost of the storage media as described earlier. It is assumed that ensuing requests for the same record would not involve the same effort and that modifications would have been made to render the production or reproduction of the records less time consuming. If that is so, it is likely that the proper fee would be based only on the cost of the storage media.
Lastly, you wrote that Orange County has indicated that it is not required to provide the data at issue if you intend to use it for “commercial purposes.” Here I point out that the Freedom of Information Law includes examples of situations in which records may be withheld on the ground that disclosure would constitute “an unwarranted invasion of personal privacy.” One of the examples for many years referred to the sale or release of a list of names and addresses if the list would be used for “commercial or fund-raising purposes.” That provision, §89(2)(b)(iii), now refers to the ability to withhold a list of names and addresses if the list would be used for “solicitation or fund-raising purposes.” More importantly, a new provision added in the same bill in which the amendments relating to fees were contained states that disclosure shall not be construed to constitute an unwarranted invasion of privacy “when a record or group of records relates to the right, title or interest in real property, or relates to the inventory, status or characteristics of real property...” [§89(2)(c)(iv)].
In consideration of the amendments referenced in the preceding paragraph, I believe that the response by Orange County is inconsistent with law.
In an effort to enhance understanding of and compliance with the Freedom of Information Law, copies of this opinion will be sent to officials at ORPS and the Orange County Attorney.
I hope that I have been of assistance.
Robert J. Freeman
cc: Lee Kyriacou, Executive Director
Stephen Harrison, Esq.
David L. Darwin, Esq.