July 30, 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.
We are in receipt of your request for an advisory opinion concerning application of the fee provisions of the Freedom of Information Law to requests for records made to the New Rochelle City School District.
Specifically, after receiving no responses to various requests, you submitted an appeal and were informed that requested records would be disclosed to you upon receipt of $274.95, including $270.00 “for scanning time charges and duplication of material.” Previously, you had been informed that you would be charged for “at least ten, and possibly as much as twenty hours”, “at an hourly salary rate of approximately $15.00” pursuant to the new “actual cost” provisions in the Freedom of Information Law. 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 delineates, 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 an agency, such as 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 cassette tape or disk. When the materials can be emailed, in our opinion, there would be no "actual cost" of reproduction because the records are not photocopied and a storage medium is not involved. However, in those instances in which substantial time is needed to prepare the copy, or more than 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 describes Apreparation" of the record and prohibits an agency from charging for Asearch 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 from records already prepared or transferring the record to the requested medium. In our opinion, the amendments do not permit an agency to charge for the amount of administrative time necessary to duplicate a tape recording, typically involving only a few minutes at the beginning and end of the recording.
The amendments to the statute continue to authorize an agency to charge for the “actual cost of the storage devices or media provided to the person making the request in complying with such request” (§87[c][ii]). Accordingly, we believe it would be reasonable for the District to indicate, in addition to the number of photocopies, the number of cassettes and CDs that it will provide to you.
With respect to scanning records in order to transmit them via email, §87(1)(b) authorizes agencies to impose fees for photocopies of records that do not exceed nine by fourteen inches, or the actual costs of reproducing other records, when it takes more than two hours of employee time to prepare a record. Therefore, it is our view that if the agency has the ability to prepare an electronic copy by means of scanning and when doing so will not involve any effort additional to preparing a photocopy, it would be required to scan the records. For example, when copy machines are equipped with scanning technology that can create electronic copies as easily as paper copies, and the agency would not be required to perform any additional task in order to create an electronic record as opposed to a paper copy, we believe that the agency is required to do so. Further, it appears in that instance that transferring a paper record into electronic format would diminish the amount of work imposed upon the agency in consideration of the absence of any need to collect and account for money owed or paid for preparing paper copies, and it would create the availability of the record in electronic format for future use.
From our perspective, 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." Depending on the circumstances of a request for documents from which the agency has the authority to redact, therefore, we advise that the agency respond in a reasonable manner. For example, if a document exists in paper format, and the agency must make a photocopy in order to redact certain information, we believe that it would be reasonable for the agency to charge $.25 per page, and the courts have confirmed that to be so [see Brown v. Goord, 45 AD3d 980 (2007)]. If a document exists in electronic format, and the agency does not have the capability to redact electronically, the agency, in our opinion, must make a paper copy in order to redact the information, and it could charge the applicant per photocopy. On the other hand, if the document exists in electronic format and the agency has the authority and the ability to redact electronically, we believe it would be reasonable for the agency to provide the requested redacted copy at no charge, in light of the statutory fee provisions.
Lastly, although compliance with the Freedom of Information Law involves the use of public employees' time, the Court of Appeals has 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 ).
On behalf of the Committee on Open Government, we hope that this is helpful to you.
Camille S. Jobin-Davis
cc: Richard E. Organisciak, Superintendent