May 14, 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.
I have received your letter and the materials relating to it, and I hope that you will accept my apologies for the delay in response.
In brief, you requested a variety of records from the Corning Painted Post School District, and at the end of the request, you wrote that you “would be happy to review the requested documents at the District’s Administrative Building in order to save time and copying costs.” In response to the request, you were informed by the District’s records access officer that “Under the FOIL law the District may charge the actual cost as the hourly rate of the lowest paid employee who is qualified to provide the documents” and that “professionals and consultants were called upon to interpret, review, and obtain the specific records requested.” Consequently, she indicated that the “total billable time for this work was $1,316.25.” You have questioned the propriety of the response.
From my perspective, the District’s response indicates a misunderstanding of the law. In this regard, I offer the following comments.
By way of background, §89(1) of the Freedom of Information Law requires the Committee on Open Government to promulgate general rules and regulations concerning the procedural implementation of that law, as well as fees. The Committee has done so, and the regulations (21 NYCRR Part 1401) have the force and effect of law. In turn, §87(1) requires the governing body of every public corporation, such as a board of education in a school district, to adopt rules and regulations consistent with the Freedom of Information Law and the Committee’s regulations.
The Committee’s regulations, since their original promulgation in 1978, have specified that when records are accessible, the must be made available for inspection, and that an agency cannot charge for the inspection of records [21 NYCRR §1401.8(a)(i)]. More importantly, the language of the Freedom of Information Law clearly permits agencies to assess a fee only when “copies” of records are requested and made.
Specifically, §87(1)(b)(iii) refers to fees for copies and includes two standards, the first of which pertains to photocopies, and the second to “other” records. An agency’s rules and regulations are required to include reference to “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...” Paragraph (c) permits agencies to assess a fee based on an employee’s salary when two hours or more are needed to prepare requested records.
Based on the language of the statute, it is clear that the only fee that may be charged when a request involves photocopies of paper records up to nine by fourteen inches is a maximum of twenty-five cents per photocopy; no additional fee may be charged for employee time, for search, redactions, etc. Employee time may be charged only when the request involves “other” records, those that are larger than nine by fourteen inches or which are maintained electronically, and even then, only in circumstances in which at least two hours of employee time are needed to prepare the records.
In this instance, as I understand the matter, because you asked to inspect existing records, I do not believe that the agency had the authority to charge a fee. I note that if a page within a record includes information that may justifiably be redacted or deleted in accordance with an exception to rights of access appearing in §87(2), an applicant does not have the right to inspect the record. In that circumstance, the applicant should be informed that a copy of record, following deletions or redaction, can be made available, but that the agency is permitted to charge up to twenty-five cents for a photocopy of that record.
In an effort to enhance understanding of the Freedom of Information Law, a copy of this opinion will be forwarded to the District.
I hope that I have been of assistance.
cc: Board of Education