January 28, 2014
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.
This is in response to your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the Office of the Attorney General. By correspondence dated November 27, 2013, the OAG submitted additional material, copy attached.
It is our opinion in this instance that the OAG is attempting to charge a fee for copies of records that is not authorized by law.
In this regard, as you know, §87(1)(b) of the Freedom of Information Law permits an agency to charge up to $.25 per photocopy up to 9x14 inches, or the actual cost of reproducing any “other” record (unless a different fee is otherwise prescribed by statute), i.e., a record larger than 9 x 14 inches or a records that is maintained electronically. The direction concerning “actual costs”, effective in 2008, is as follows in §87(1)(c):
“In 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.”
Accordingly, should the applicant request electronic records in electronic format, and should the agency have the ability to redact appropriate material electronically, we believe that the agency would have authority to charge the salary of the lowest paid employee capable of preparing the record, in addition to the actual cost of any storage devices provided, if two hours or more are needed to prepare the records.
Amendments made simultaneous to the adoption of the above language (L. 2008, Ch. 223) include the following sentence:
“Any 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.” §89(3)(a).
It is our understanding that this sentence was added to clarify an agency’s obligation, within reason, to develop and/or avail itself of available programming to retrieve requested electronic records, as a result of a decision by the Court of Appeals in Data Tree, LLC v Romaine, 9 NY3d 454, 849 NYS2d 489 (2007). "A simple manipulation of the computer necessary to transfer existing records should not, if it does not involve significant time or expense, be treated as creation of a new document" (Id. at 465.) The emphasis in the statutory language, in our opinion, therefore, should be on the words “new record”, in further reference to §89(3)(a) of the FOIL, which states in relevant part that an agency is not required “to prepare any record not in possession or maintained by such entity…”. Accordingly, we believe it was the Legislature’s intent to reiterate that reliance on electronic programming to retrieve records would not result in the creation of a new record, and, therefore, is required, if retrieval can be accomplished with reasonable effort.
Regulations adopted by the Committee on Open Government, having the full force and effect of law, reiterate and clarify statutorily permitted fees as follows:
“(a) An agency shall not charge a fee for the following:
(1) inspection of records for which no redaction is permitted;
(2) search for, administrative costs of, or employee time to prepare photocopies of records;
(3) review of the content of requested records to determine the extent to which records must be disclosed or may be withheld; or
(4) any certification required pursuant to this Part.” (21 NYCRR 1401.8.)
This provision confirms that an agency is not permitted to charge for time spent reviewing records to determine which portions, if any, may be withheld.
Insofar as the Attorney General indicates that to date, no court has addressed whether an agency may charge for time spent redacting electronic email records after they have been reviewed for redaction purposes, we agree. We further agree that the language of the law is, at best, not entirely clear. Based on statements made by Jeffrey Pearlman, Assistant Counsel to the Governor and Records Access Officer at “E-FOIL 2009: Issues of Access in the Digital Age”, December 4, 2009, and our experience to date, however, it is our understanding that the fees outlined above in §87(1)(c) would typically apply when access to a large data base is at issue. Where portions of the database were to be withheld, and separating out public material took more than two hours of labor, the agency, in our opinion, would have authority to charge for the time spent culling the material.
Accordingly, we disagree with the Attorney General’s contention that the physical act of removing material from an email record pursuant to legal advice, is the same as extracting data maintained in a computer storage system. In our opinion, electronically removing material from email records is the same as blacking out sentences on a page prior to copying for release, an act which the Freedom of Information Law has consistently required the agency to perform at no cost to the applicant.
In this regard, although compliance with the Freedom of Information Law involves the use of public employees' time and perhaps other costs, the Court of Appeals has found that the law is not intended to be given effect "on a cost-accounting basis", but rather that “Meeting the public's legitimate right of access to information concerning government is fulfillment of a governmental obligation, not the gift of, or waste of, public funds" [Doolan v. BOCES, 48 NY 2d 341, 347 (1979)].
To the extent that the Attorney General relies on FOIL Advisory Opinions of this office, they can be distinguished as follows:
Unlike the situation here, FOIL-AO-17606 involved the hiring a third-party vendor to “scrub” social security numbers from a large volume of land records maintained by a county. In that instance, it was not reasonable for an agency to offer manual labor to redact the entire volume of electronic records. Instead, the county contracted with its vendor to activate software to accomplish the same task. It is our understanding that “scrubbing” records clean of numbers involves software that searches for particular sequences of numbers and either deletes all of those numbers within all of the records, or replaces them all with a heavy black mark. If our assumption is correct, we stand by our opinion, that “[g]iven the time-saving capabilities of software that could search for, locate and redact social security numbers, and based on the amendments outlined above, in our opinion, the law permits an agency to recover costs to redact records in this manner.” This opinion is narrow in scope and limited to redacting records through use of software owned by a third-party vendor.
In FOIL-AO-17732, we observed that typically, legal staff would be involved with the redaction of records, separate from the work of those involved in the preparation of records. The opinion was based on our assumption that legal staff would be responsible for making the actual redactions, while others would be responsible for gathering or culling the records off of a server or out of a database, and transferring the records into a medium through which the redactions could be made.
This will confirm the advice offered in FOIL-AO-17734 that “it is our opinion that an agency may charge for employee time spent extracting or segregating data from an electronic database, but not for redacting from records already prepared or transferring the record to the requested medium.” It remains unclear whether the agency in that situation was attempting to charge a fee for scanning paper records or for redacting electronic records. Nevertheless, it was our advice that “if the document exists in electronic format and the agency has the authority and the ability to redact electronically, we believe it would be reasonable for the agency to provide the requested redacted copy at no charge, in light of the statutory fee provisions.” Had the preparation of the records in that case involved transferring the redacted records to a particular medium, and that transfer required more than two hours employee time, it is likely that our answer would have included reference to authority to charge for time spent preparing the record.
FOIL-AO-17858 involved a request for copies of all records regarding “all [agency] litigation” for a period of four years. This will confirm the opinion expressed therein, that “if the document exists in electronic format and the agency has the authority and the ability to redact electronically, we believe it would be reasonable for the agency to provide the requested redacted copy at no charge, in light of the new statutory fee provisions.”
FOIL-AO-18127 involved an agency that was attempting to charge for redacting records (‘hourly rate of staff used to do redaction”). We reiterated our opinion that no fee is permitted by law or regulation for redacting records.
We hope that this is helpful.
Camille S. Jobin-Davis
cc: Kathryn Sheingold, Assistant Solicitor General