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April 1, 1993

 

 

Mr. Keith J. Larsen
COMPS, Inc.
84-23 108th Street
Richmond Hill, N.Y. 11418

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. Larsen:

I have received your letter of March 18, as well as the
materials attached to it.

Your inquiry concerns the fee that may be charged by the Town
of Southampton for reproduction of "assessment computer tapes."
You were informed that the cost of the tapes would be $1,250.

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)].

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 1401.8)."

Based upon the foregoing, it is likely that a fee for
reproducing a computer tape, assuming that its contents are wholly
available under the law, 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.

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)]. While the cost of purchasing or developing electronic
information systems is significant, in most instances agencies
purchase or develop those systems for their own governmental
purposes. In those cases, the agency would expend public monies,
notwithstanding the possibility that requests may or may not be
made by the public under the Freedom of Information Law.

A copy of this opinion will be forwarded to Richard Blowes,
the Town's Commissioner of General Services.

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:pb

cc: Richard Blowes, Commissioner of General Services