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                                                                                                March 4, 2010




FROM:            Robert J. Freeman, Executive Director

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 aware, I have received your correspondence, which consists of a response by the New York City Department of Information Technology and Telecommunications (DOITT) to a request by the New York Post for “all photos and videotape submitted [in 2009] to the city’s 311 system under its Picture and Video Submission program.”  You were informed by the Department that the fee for copies of the material would be $2,739.75.”  You have sought an advisory opinion concerning the propriety of the fee.          

            In his explanation of the basis for the fee, an attorney for the Department wrote that your request:

“...would require extensive work by DoITT’s data processing personnel to retrieve the requested data from the 311 database.  The undertaking would involve the coordinated effort of three types of employees - production support, portal development and database administration.  The portal development person would write the code to retrieve the data (specifically: developing and testing a script to find the requested media for the requested time period, i.e. 1/1/09 - 12/31/09, assembling the database connection configuration, running the established queries, retrieving the media file name result set, and copying the data to a new directory) to allow the production support employee to perform his/her activities.  The production support employee would use the code to perform data retrieval and migrate and copy the data to a media storage device.  The database administration employee would recreate the database in an environment where the production support employee could do his/her job without fear of accidentally deleting any videos or pictures.  (Were they to be accidentally deleted in the production environment, the system would permanently lose those videos/pictures.)

“...the quoted figure is based on the number of hours necessary to retrieve the responsive data multiplied by the hourly salaries attributed to the lowest-paid agency employees who have the necessary skills required to prepare a copy (pursuant to Public Officers Law §87(1)(c).  The charge for the production support employee is $385.00 (7 hours @ $55.00 per hour).  The charge for the portal development person is $2,020.00 (40 hours @ $50.50 per hour).  The charge for the database administration employee is $334.75 (6.5 hours @ $51.50 per hour).”

            As you are aware, when a request is made pursuant to the Freedom of Information Law for records other than photocopies up to nine by fourteen inches, an agency may assess a fee based on the actual cost of reproduction [§87(1)(b)(iii)].  According to §87(1)(c):

“[i]n 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.”

            The scope of the phrase “preparing a copy” is further delineated in §89(3)(a), which states in relevant part 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.”

            As I understand the Department’s explanation of the fee that it seeks to impose, an element of that fee involves “administrative costs” which, pursuant to subparagraph (iv) of §87(1)(c), cannot be charged.   Other aspects of the fee appear to involve “programming necessary to “retrieve a record maintained in a computer storage system”, transferring the record the medium requested, and enabling “the transferred record to be read or printed”, none of which may properly be charged based on the language of §89(3)(a) quoted above.

            While I cannot specify the amount of the fee that cannot validly be charged in consideration of the provisions highlighted in the preceding paragraph, to comply with the Freedom of Information Law, I believe that the Department must review the basis of its fee of more than $2,700 and reduce that amount in a manner consistent with the direction indicated by those provisions.

            Lastly, assuming that the Department’s description of the actions needed to be taken to disclose the records to you is accurate, that those actions would involve nearly fifty hours of employees’ time, I believe that questions might justifiably be raised concerning the Department’s obligation to do so.

            Currently there is nothing in the Freedom of Information Law that prescribes a limitation on the volume of records sought or the scope of a request, nor is there any particular guideline that sets a limitation on the amount of time that an agency must employ in order to satisfy a request.  In consideration of the advances in information technology that now enable government agencies and others to store and retrieve vast amounts of information, it is possible in my view that judicial decisions may be rendered that authorize agencies to create reasonable limitations in compliance with law.

            Perhaps most pertinent in consideration of the matter is the decision rendered by the Court of Appeals, the state’s highest court, in Konigsberg v. Coughlin [68 NY2d 245 (1986)].  By way of background, since 1978, §89(3) of the Freedom of Information Law has required that an applicant must “reasonably describe” the records sought.  In its decision, the Court found, in brief, that the volume of a request is not determinative of whether that standard is met.  Rather, it was suggested that the nature of an agency’s filing, record keeping or indexing system is significant in determining whether or the extent to which a request reasonably describes records that have been requested.  The court referred to precedent under the federal Freedom of Information Act and a situation in which an “agency’s indexing system was such that ‘the requested documents could not be identified by retracing a path already trodden.’” (id., 250)

            It is noted that §89(3)(a) also states in part that:

“When an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so.”

            I am not an expert in the field of information technology and cannot advise with respect to the need to engage in the process or the amount of time spent described by the Department in its efforts in making the records available to you.  If, however, its description it accurate, and in view of the guidance offered in Konigsberg, a court might determine that production of the records involves an unreasonable burden and that, in consideration of the technicality and length of the process involved in doing so, the request would result in actions beyond a “reasonable effort.”  This is not intended to suggest that there is judicial precedent involving information stored electronically that would support that conclusion or that it reflects the interpretation of this office, but rather that court might arrive at that conclusion.        

            A copy of this opinion will be forwarded to the Department.

            I hope that I have been of assistance.


cc: David A. Berman