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FOIL-AO-18153

                                                                                                June 21, 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.

Dear


            This is in response to your letter in which you inquire about a municipality’s authority to charge a fee for the inspection of records. Specifically, the Town of Lewisboro has “imposed a twenty-five dollar fee for real estate licensees who request to see a certificate of Occupancy or a Violations record on a particular property.”

            As a general matter, §87(2) of the Freedom of Information Law requires that accessible records be made available for inspection and copying. When an applicant requests copies of records, the records may be reproduced in the presence of an applicant, the applicant can physically present himself at an agency’s offices to obtain copies, copies can be mailed to the applicant or in many instances, they can be sent via email.

            No fee may be assessed for the inspection of accessible records when inspection occurs at the offices of an agency. When copies of records are requested, §87(1)(b)(iii) of the Freedom of Information Law permits an agency to charge up to twenty-five cents per photocopy for records up to nine by fourteen inches, unless a statute other than the Freedom of Information Law permits an agency to charge a higher fee. Further, pursuant to §87(2) in conjunction with §87(1)(b)(iii) of the Freedom of Information Law concerning fees for copies, when a record is available in its entirety under the Freedom of Information Law, any person has the right to inspect the records at no charge. That being so, if the records at issue are accessible in their entirety, which appears to be so, we do not believe that the Town may assess a fee when the request is to inspect the records.

            Additionally, by way of background, §87(1)(b)(iii) of the Freedom of Information Law stated until October 15, 1982, that an agency could charge up to twenty-five cents per photocopy unless a different fee was prescribed by "law". Chapter 73 of the Laws of 1982 replaced the word "law" with the term "statute". As described in the Committee's fourth annual report to the Governor and the Legislature of the Freedom of Information Law, which was submitted in December of 1981 and which recommended the amendment that is now law:


"The problem is that the term 'law' may include regulations, local laws, or ordinances, for example. As such, state agencies by means of regulation or municipalities by means of local law may and in some instances have established fees in excess of twenty-five cents per photocopy, thereby resulting in constructive denials of access. To remove this problem, the word 'law' should be replaced by 'statute', thereby enabling an agency to charge more than twenty-five cents only in situations in which an act of the State Legislature, a statute, so specifies."

            As such, prior to October 15, 1982, a local law, an ordinance, or a regulation for instance, establishing a search fee or a fee in excess of twenty-five cents per photocopy or higher than the actual cost of reproduction was valid. However, under the amendment, only an act of the State Legislature, a statute, would in my view permit the assessment of a fee higher than twenty-five cents per photocopy, a fee that exceeds the actual cost of reproducing records that cannot be photocopied, or any other fee, such as a fee for search. In addition, it has been confirmed judicially that fees inconsistent with the Freedom of Information Law may be validly charged only when the authority to do so is conferred by a statute. In Sheehan v. City of Syracuse [521 NYS 2d 207 (1987)]. a fee in excess of twenty-five cents per photocopy for certain records was established by an ordinance, and the court found the ordinance to be invalid. Moreover, the Appellate Division, Second Department, which includes Westchester County, reached the same conclusion relative to a provision in a county code, finding that a fee established by local that exceeded the fees permissible under the Freedom of Information Law was invalid. [Gandin, Schotsky & Rappaport v. Suffolk County, 226 AD 2d 339 (1996)].

            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 sum,  in our view, unless a statute, an act of the State Legislature, authorizes an agency to charge a different fee, an agency can charge no more than twenty-five cents per photocopy up to nine by fourteen inches.

            We hope that we have been of assistance.


                                                                                                Sincerely,

           
                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director
CSJ:JBG:m

cc:  Town Board
Hon. Kathy G. Cory, Town Clerk