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March 29, 1993

 

 

Mr. Edward Nash
119 Stewart Landing Road
Stratford, NY 13470

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. Nash:

I have received your letter of March 12 in which you sought
assistance concerning fees established by the Fulton County Board
of Supervisors under the Freedom of Information Law.

Specifically, you wrote that County officials have informed
you "that the charges for copies or printouts for the
aforementioned information are provided at the following costs: 50¢
per page for photocopies and 25¢ per page for electronically stored
information in printout form."

In this regard, 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 or the
actual cost of reproduction 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."

Therefore, 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 [see Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)].

Based upon the foregoing, absent contrary statutory authority,
an agency may charge a maximum of 25¢ cents per photocopy up to
nine by fourteen inches; in the case of electronic information, an
agency may charge a fee based on the actual cost of reproduction,
which would involve the cost of computer time, plus the cost of an
information storage medium (i.e., a computer tape) to which data is
transferred, or the cost of paper when a printout is prepared.

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)].

Lastly, I point out that while an agency may charge for
printouts on the actual cost basis described above, legislation has
been introduced that would authorize agencies to charge 25¢ per
sheet when printouts are generated.

I hope that I have been of some assistance. Should any
further questions arise, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Board of Supervisors
James R. Hillier, Sr.