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FOIL-AO-17858

                                                                                                October 22, 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.

Dear

            This is in response to your request for an advisory opinion concerning application of the Freedom of Information Law to a request for records made to the County of Erie.

            Specifically, you requested copies of records concerning “all litigation and threatened litigation involving the Erie County Holding Center and the Erie County Correctional Facility (‘County Jails’) for the period of June 1, 2005 to August 1, 2009.”  In response, the County informed you that “due to the magnitude of the request, it will take an estimated sixty days to compile your request.”  Further, the County indicated that because the preparation of the records would require more than two hours of County employee time, you are required to submit $2,497.83 within fifteen days or the County “will assume that you are no longer interested in the material and will close our file.” 

            In this regard, we offer the following comments and guidance.

            First, the specific language of the Freedom of Information Law and the regulations promulgated by the Committee on Open Government indicate that, absent statutory authority, an agency may charge fees only for the reproduction of records. Section 87(1)(b) of the Freedom of Information Law states:

"Each agency shall promulgate rules and regulations in conformance with this article...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...

“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.”

            The regulations promulgated by the Committee states in relevant part that:

"Except when a different fee is otherwise prescribed by statute:
(a) An agency shall not charge a fee for the following:
(1) inspection of records for which no redaction is permitted;
(2) search for, administrative costs of, or employee time to prepare photocopies of records;
(3) review of the content of requested records to determine the extent to which records must be disclosed or may be withheld; or
(4) any certification required pursuant to this Part.”  (21 NYCRR section 1401.8).


            As such, the Committee's regulations specify that no fee may be charged for personnel time, for inspection of or search for records, except as otherwise prescribed by statute.

            In August of 2008, the Freedom of Information Law was amended to include new parameters for calculating the “actual costs of reproducing” records other than paper records in excess of nine by fourteen inches.  A new §87(1)(c) provides as follows:

“(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, 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 two 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 two 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 in §87 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 paper records that are photocopied and that are no larger than nine by fourteen inches.  If it takes an agency more than two hours to photocopy such 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 two hours to prepare photocopies of paper records that exceed nine by fourteen inches or to prepare 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, and in the latter, the cost of a disk or tape.

            In this case, the County appears to have interpreted the amendments to apply to all records that are responsive to your request.  In our opinion, if the County maintains records pertaining to the above mentioned litigation electronically, and the preparation of such records for dissemination to you would require more than two hours of employee time, the County would have the authority, under the amendments, to charge you for the salary of the lowest paid County employee capable of preparing the record.  If the records are maintained in paper format, we know of no basis in the law to charge more than $.25 per photocopy.  Further, we believe it would be reasonable for the County to inform you of the legal basis for the request that you pay $2,497.83 for the requested records.

            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 on paper, and the agency must make a photocopy in order to redact certain information, the agency may charge $.25 per page, and the courts have confirmed that to be so [see Brown v. Goord, 45 AD3d 980, , 845 NYS2d 495 (3rd Dept, 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 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 new statutory fee provisions.

            In keeping with the above, it is unlikely, in our opinion, that an agency could demand payment within 15 days of the date of a letter, or dismiss a request.  A reasonable scenario, in our opinion, would perhaps include a 30 to 60 day window to submit payment, especially in cases where the payment is large, and an offer to assist the applicant in modifying a request in order to minimize the expense.

            As you may know, regulations promulgated by the Committee on Open Government, which have the force and effect of law, state that an agency's designated records access officer has the duty of assuring that agency personnel "assist persons seeking record to identify the records sought, if necessary, and when appropriate, indicate the manner in which the records are filed, retrieved or generated to assist persons in reasonably describing records" and further, "to contact persons seeking records when a request is voluminous or when locating the records sought involves substantial effort, so that agency personnel may ascertain the nature of records of primary interest and attempt to reasonably reduce the volume of the records requested" (21 NYCRR 1401.2[b][2] and [3]).  Again, in our opinion, it would be reasonable for both parties to discuss the volume of records identified in response to the request in order to explain the County’s response.

            Finally, we note that you have made a broad request for all records regarding litigation and threatened litigation.  There are a myriad of issues that may arise in determining rights of access to records that may be protected by the attorney-client privilege, that may be maintained by an agency’s outside counsel, and/or that may involve intra or inter agency communications.  In this regard, we have enclosed copies of FOIL Advisory Opinions 14254, 13957 and 10796, which provide legal analysis that may be helpful to you.

            On behalf of the Committee on Open Government, we hope that this is helpful to you.

                                                                                                Sincerely,

 

                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director

CSJ:jm

cc: Stephanie J. Calhoun