January 29, 1993
Mr. Samuel Jackson
Great Meadow Correctional Facility
P.O. Box 51
Comstock, N.Y. 12821-0051
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 Mr. Jackson:
I have received your letter of January 6, which reached this office on January 13.
According to your letter and the correspondence attached to it, having requested records from the Town of Warwick, you were informed that copies of six pages would be disclosed upon payment of a fee of $5.00 per page for a total of $30.00. You have asked for assistance in seeking a waiver of the fee.
In this regard, I offer the following comments.
First, there is nothing in the Freedom of Information Law pertaining to the waiver of fees for copies, and it has been held that an agency is not required to waive fees even when the applicant is an indigent inmate [see Whitehead v. Morgenthau, 552 NYS 2d 518 (1990)].
Second, however, it appears that a fee of five dollars per photocopy is inconsistent with the Freedom of Information Law. In my 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.
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.
Further, 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. Section 87(1)(b) of the Freedom of Information Law states:
"Each agency shall promulgate rules and regulations in conformance with this article...and pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the availability of records and procedures to be followed, including, but not limited to...
(iii) the fees for copies of records which shall not exceed twenty-five cents per photocopy not in excess of nine by fourteen inches, or the actual cost of reproducing any other record, except when a different fee is otherwise prescribed by statute."
The regulations promulgated by the Committee state in relevant part that:
"Except when a different fee is otherwise prescribed by statute:
(a) There shall be no fee charged for the following: (1) inspection of records; (2) search for records; or (3) any certification pursuant to this Part" (21 NYCRR section 1401.8).
As such, the Committee's regulations specify that no fee may be charged for inspection of or search for records, except as otherwise prescribed by statute.
I know of no statute that would authorize the Town of Warwick to charge in excess of twenty-five cents per photocopy. Consequently, I believe that the Town could properly charge a maximum of $1.50 for photocopies of six pages of documents, so long as those documents do not exceed nine by fourteen inches.
A copy of this response will be forwarded to the Town Clerk.
I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman
cc: Karen S. Lavinski, Town Clerk and Records Management Officer