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March 11, 1993

 

Ms. Bernice E. Bray
32 Stuart Road
Churchville, NY 14428

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 Ms. Bray:

I have received your letter of March 8 and the materials
attached to it.

You have sought assistance concerning the ability to inspect
records of the Town of Chili. According to your letter, you are
"not allowed to see documents that are held in any department other
than the Town Clerk's." Further, in response to a request to
inspect records located in various departments of the Town
government, the Town Clerk wrote that doing so "would mean setting
up a time with various departments...and thus cause disruption in
daily work routine." The Clerk added that:

"The most economical way to obtain these
records is for my department to make copies of
your request and charge you 25¢ per copy. If
you choose to have me compile these records
please do so in writing. If I do compile the
records for you, you will be required to take
the entire package and pay for it. In the
past I have spent a great deal of time
compiling information that you did not feel
you wanted and only paid for a portion
thereof."

In this regard, I offer the following comments.

First, having reviewed a copy of a request attached to your
letter, I point out that the Freedom of Information Law pertains to
existing records. Section 89(3) of the Law states in part that an
agency is not required to create or prepare records in response to
a request. Therefore, if, for example, the Town maintains no list
of Park or Recreation Department equipment, Town officials would
not be required to prepare such a list on your behalf. Similarly,
one aspect of your request involved a report "showing in
consecutive order the receipts issued, amount received, date, what
program the money was received for, and for whom the money was
received." If no report exists in the format that you described or
containing each of the elements indicated, I do not believe that
Town officials would be obliged to "compile" or create a new record
containing the information or prepare a new record in the desired
format.

Second, insofar as records exist, assuming that they are
accessible under the Freedom of Information Law, an applicant has
the right to inspect and copy those records, and if the applicant
seeks photocopies, an agency may in most instances charge up to
twenty-five cents per photocopies. If copies are requested and an
agency makes them, I believe that an applicant can be required to
pay the appropriate fee. However, if an applicant seeks to inspect
accessible records, in my opinion, no fee can be charged. 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.

Moreover, although compliance with the Freedom of Information
Law involves the use of public employees' time, 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)].

Lastly, although the Freedom of Information Law provides
direction concerning the time and manner in which an agency must
respond to requests, it does not include any provision that
specifies a period within which records must be disclosed. Section
89(3) of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this
article, within five business days of the
receipt of a written request for a record
reasonably described, shall make such record
available to the person requesting it, deny
such request in writing or furnish a written
acknowledgement of the receipt of such request
and a statement of the approximate date when
such request will be granted or denied..."

While an agency must grant access to records, deny access or
acknowledge the receipt of a request within five business days,
when such acknowledgement is given, there is no precise time period
within which an agency must grant or deny access to records. The
time needed to do so may be dependent upon the volume of a request,
the possibility that other requests have been made, the necessity
to conduct legal research, the search and retrieval techniques used
to locate the records and the like. In short, when an agency
acknowledges the receipt of a request because more than five
business days may be needed to grant or deny a request, so long as
it provides an approximate date indicating when the request will be
granted or denied, and that date is reasonable in view of the
attendant circumstances, I believe that the agency would be acting
in compliance with law.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm
cc: Carol O'Connor, Town Clerk