July 29, 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.
Thank you for submitting comments and questions concerning regulations promulgated by the Committee on Open Government with respect to new provisions regarding an agency’s ability to charge “actual costs” for preparing records sought pursuant to the Freedom of Information Law.
As you know, section 87(2) of the Freedom of Information Law was amended in August of 2008. It now includes standards for determining actual costs associated with preparing electronic records, as follows:
(b) Each agency shall promulgate rules and regulations, in conformity with this article and applicable rules and regulations promulgated pursuant to the provisions of paragraph (a) of this subdivision, and pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the availability of records and procedures to be followed, including, but not limited to:
i. the times and places such records are available;
ii. the persons from whom such records may be obtained; and
iii. the fees for copies of records which shall not exceed twenty-five cents per photocopy not in excess of nine inches by fourteen inches, or the actual cost of reproducing any other record in accordance with the provisions of paragraph (c) of this subdivision, except when a different fee is otherwise prescribed by statute.
(c) 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, when it is necessary for an agency employee to spend more than two hours in the preparation of records, other than photocopies of paper records not in excess of 9 x 14 inches, an agency may require that the applicant for such records remit payment equal to the hourly salary of the lowest paid employee capable of preparing the record, or the actual cost of retaining an outside professional service, plus the cost of storage devices or media used to make the records available.
Specifically, you asked whether the lowest paid employee would be “a generic position” or “based on the internal needs of the department or agency responsible for the reproduction.” You indicated that the employee responsible for the preparation of the record is typically a member of the legal department, someone who, for example, may need the assistance of an engineer due to the technical nature of a particular request.
Based on the amendments to the law, in our opinion, when an agency is required to prepare electronic records for disclosure, the agency may require payment of the salary of the actual lowest paid employee or employees at the agency with the necessary skills to prepare the records. If it is necessary to utilize a programmer, for example, to extract the records from a database, in our opinion, the agency would be permitted to require payment of the salary of the lowest paid programmer with the necessary skills who is currently employed by the agency. If it is necessary for the programmer to consult with an engineer, and perhaps a member of the legal department, we believe the salaries of those persons could be included in the agency’s calculation of “actual costs”, again, as long as those persons are the lowest paid employees capable of working with the programmer in the preparation of the record, and as long as more than two hours of employee time (in the aggregate in this instance) is necessary to prepare the record. It is unlikely in our experience that “legal staff” would be involved in the “preparation” of records. Often legal staff reviews records to determine which portions may properly be withheld or redacted. That function is in our view separate from preparing records.
In part, the amendments codify case law and the elements of the regulations promulgated by the Committee on Open Government that prohibit an agency from charging for search and administrative costs. In our opinion, the amendments have no impact on the Committee’s regulations, adopted prior thereto, prohibiting an agency from charging for any certification or the time spent by an agency employee redacting portions of records that are not required to be disclosed.
On behalf of the Committee on Open Government we hope that this is helpful to you.
Camille S. Jobin-Davis