April 12, 2010
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.
I have received your letter and the correspondence relating to it. Please accept my apologies for the delay in response.
According to the materials, you requested copies of “any documents, correspondences and paperwork forwarded to the Comm. on Professional Standards by the Greene County Clerk’s Office in connection with the Committee’s inquiry on or about 10/06/09 to the County Clerk’s office...”, as well as copies of materials received from the Committee. In response to the request, you wrote that the “County Atty wishes to charge $1.00 per page...” and that she cited an opinion rendered by this office that the County Clerk is not subject to the provisions in the Freedom of Information Law concerning fees that may be charged for copies of records.
In this regard, as you are likely aware, county clerks maintain a variety of records, some of which are court records maintained in their capacities as clerks of courts. Insofar as the issues raised involve those persons as clerks of courts, they are beyond the advisory jurisdiction of the Committee on Open Government. Insofar as the issues pertain to other records maintained by county clerks, I believe that those records are subject to the Freedom of Information Law.
When the Freedom of Information Law is the governing statute, the fee for copies of records is twenty-five cents per photocopy; the fees for copies other than photocopies, according to §§87(1)(b) and (c) of the Law, is based on the actual cost of reproduction, unless a different fee is prescribed by statute.
Several statutes, specifically,§§8018 through 8021 of the Civil Practice Law and Rules (CPLR), require that county clerks charge certain fees in their capacities as clerks of court and other than as clerks of court. Since those fees are assessed pursuant to statutes other than the Freedom of Information Law, I believe that they may exceed those permitted under the Freedom of Information Law. As stated in §8019, "The fees of a county clerk specified in this article shall supersede the fees allowed by any other statute for the same services...".
Subdivision (f) of §8019, entitled "Copies of records", states in relevant part that:
"The following fees, up to a maximum of thirty dollars per record shall be payable to a county clerk or register for copies of the records of the office except records filed under the uniform commercial code:
1. to prepare a copy of any paper or record on file in his office, except as otherwise provided, sixty-five cents per page with a minimum fee of one dollar thirty cents."
If a record subject to subdivision (f) is reproduced on paper, i.e., by means of a photocopy machine, it would be clear in my opinion that the Freedom of Information Law would not be applicable and that a county clerk could charge “sixty-five cents per page with a minimum fee of one dollar thirty cents...”
While I am unfamiliar with the legislative history of §8019, I would conjecture that the Legislature in enacting that and other sections within Article 80 of the CPLR, intended that county clerks, in their capacities as clerks of court and otherwise, carry out certain duties and assess certain fees for performing particular services.
I would conjecture that the fees that may be charged pursuant to the CPLR involve those that are unique to county clerks, court records, and those that must be “filed” with county clerks. Concurrently, it may be that other records, those involving the functions of agencies generally, including those carried out by clerks, such as records involving personnel, purchasing and other administrative duties, would be found to be outside the scope of the provisions concerning fees in the CPLR. In those instances, the provisions of the Freedom of Information Law would appear to be applicable.
In sum, although I am unaware of any judicial decision that focuses on the functions of county clerks and the fees that they may charge for copies of records, in my view, a distinction may be made between situations in which a county clerk performs duties as a court clerk, as the repository of records that must be filed in his/her office, or pursuant to specific direction provided in the CPLR, and others in which the clerk performs duties analogous to those of government agencies generally and that are not unique to a county clerk. In cases involving the former, I believe that the provisions concerning fees in the CPLR would apply; contrarily, in cases involving the latter, it appears that the provisions of the Freedom of Information Law would apply.
I hope that I have been of assistance.
Robert J. Freeman
cc: Hon. Michael Flynn, County Clerk
Carol Stevens, County Attorney