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FOIL-AO-18151

June 17, 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 facts presented in your correspondence, unless otherwise indicated.

Dear:

          We have received your request for an advisory opinion regarding the Freedom of Information Law (FOIL) and the propriety of the fee required to gain access to records of the Setauket Fire District. Specifically, you requested a copy of a video surveillance tape depicting an incident in which you slipped and fell on District property. After payment of a fee of $140, the District provided the video tape to you but you have raised the following issues:


“1.  According to the August 7, 2008, guidelines under the ‘Fees for Electronic Information’, is DenGal Interactive considered ‘the agency’ since they are already under contract with the District or a ‘private professional service”?

a. Based on this determination, was I notified appropriately of the fees?

2. Am I responsible for the $140 fee?

3. Are the fees considered reasonable and customary?”


          In this regard, as you may be aware, the FOIL pertains to agency records and that §86(4) of the FOIL defines the term "record" expansively to include:

"any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

          Based upon the language quoted above, if information is maintained in some physical form,
it would in our opinion constitute a "record" subject to rights of access conferred by the Law.
Consequently, the video surveillance tape clearly constitutes a “record” that falls within the coverage of the FOIL, for it was prepared “for” the District by a private company, DenGal Interactive.

          Second, by way of background with respect to fees, §87(1) requires agencies to adopt rules and regulations concerning the procedural implementation of that statute, and paragraph (b)(iii) of that provision refers to fees for copies.  That provision includes two standards, the first of which pertains to photocopies, and the second to “other” records.  Specifically, 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...”(emphasis added).  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 our view, in the case of the surveillance tape, unless the fee is reflective of the actual cost of reproduction, we believe that it would be invalid. With respect to clerical or other costs associated with responding to a request for copies of records, 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. In addition to §87(1)(b) of the Law, the regulations state in relevant part that:

"Except when a different fee is otherwise prescribed by statute:

(c) The fee an agency may charge for a copy of any other record is based on the actual cost of reproduction and may include only the following:
(i) an amount equal to the hourly salary attributed to the lowest paid employee who has the necessary skill required to prepare a copy of the requested record, but only when more than two hours of the employee’s time is necessary to do so; and
(ii) the actual cost of the storage devices or media provided to the person making the request in complying with such request; or
(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, and if such service is used to prepare the copy” (21 NYCRR Part 1401.8).

           It has been held that the actual cost of reproducing a tape recording would involve the cost of a cassette (see Zaleski v. Hicksville Union Free School District, Supreme Court, Nassau County, NYLJ, December 27, 1978).

            In response to our notification that you had requested an advisory opinion, the District expressed the belief that the fee was justified (copy attached).  “[S]urveillance video equipment at the location in question requires that the video recording be recycled every ten-fifteen days” and further, that “when the district became aware of the incident of May 25, 2009 the district immediately sought to maintain and save the video of the incident in full anticipation that a request under the Freedom of Information Act would be made by Ms. Schaub for the video in question. It was for this reason that on May 27, 2009 the Fire District’s vendor was requested to produce a DVD of the incident.”

            We know of no legal authority, statutory or otherwise, that would require an agency to procure a recording from a third party vendor in anticipation of a FOIL request.  We are in receipt of anecdotal information that agencies typically “tape over” surveillance tapes after a period of days, and it is our understanding that this is not in contravention of an agency’s responsibilities to retain records for certain periods of time (see Records Retention and Disposition Schedules promulgated by the New York State Archives).  Accordingly, it is our view that the District had no legal obligation to procure or retain a tape in anticipation of a FOIL request.  That being so, in our opinion, the decision to procure the tape from the vendor was the District’s own.  Accordingly, in our view, the District would have the legal authority to charge only the actual cost of reproducing the recording that was in its possession at the time of the request. 

                We hope that we have been of assistance.


                                                                                                Sincerely,

 

                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director

CSJ:KC:jm

Enc.

cc: Cynthia Hubbard
Robert Cavalieri
Howard Bergson