NY.gov Portal State Agency Listing

 

August 18, 1993

 

 

Mr. Thomas W. Jeram
D'Agostino, Hoblock, Greisler & Siegal, P.C.
39 North Pearl Street
Albany, New York 12207-2767

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,
except as otherwise indicated.

Dear Mr. Jeram:

I have received your letter of August 16 in which you sought
an advisory opinion "concerning a statement by the Commissioner of
Finance of the City of Mechanicville...denying [y]our examination
of the tax records in the finance office."

Specifically, you wrote that the Commissioner informed you
"that the only method available to obtain tax information was to
pay a fee of $50.00." Further, having requested information
concerning the procedure for seeking records under the Freedom of
Information Law, the Commissioner informed you that "there was no
way a representative from [y]our office could examine the tax
records."

In this regard, I offer the following comments.

First, by way of background, §89(1)(b)(iii) of the Freedom of
Information Law requires the Committee on Open Government to
promulgate regulations concerning the procedural implementation of
the Law (see 21 NYCRR Part 1401). In turn, §87(1) requires the
governing body of a public corporation, i.e., a city council, to
adopt rules and regulations consistent with the Law and the
Committee's regulations.

Relevant to your inquiry is §1401.2 of the regulations, which
provides in relevant part that:

"(a) The governing body of a public
corporation and the head of an executive
agency or governing body of other agencies
shall be responsible for insuring compliance
with the regulations herein, and shall
designate one or more persons as records
access officer by name or by specific job
title and business address, who shall have the
duty of coordinating agency response to public
requests for access to records. The
designation of one or more records access
officers shall not be construed to prohibit
officials who have in the past been authorized
to make records or information available to
the public from continuing to do so.

(b) The records access officer is responsible
for assuring that agency personnel...

(3) Upon locating the records, take one of
the following actions:

(i) make records promptly available for
inspection; or
(ii) deny access to the records in whole or in
part and explain in writing the reasons
therefor..."

In view of the foregoing, the records access officer has the "duty
of coordinating agency response" to requests and assuring that
agency personnel act appropriately in response to requests. As
such, ordinarily a request to inspect or seek copies of records
should be to made or forwarded to an agency's designated records
access officer, and that person should respond to a request or
ensure that other agency officials respond in a manner consistent
with the Freedom of Information Law.

Second, in my view, unless a statute, an act of the State
Legislature, authorizes an agency to charge a fee for inspecting or
searching for records or to charge more than twenty-five cents per
photocopy for records up to nine by fourteen inches, no such fees
may be assessed.

I point out that §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 [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 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.

Additionally, 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, you indicated by phone that the records in question
relate to the assessment of real property. In this regard, with
respect to rights of access, the Freedom of Information Law is
based upon a presumption of access. Stated differently, all
records of an agency are available, except to the extent that
records or portions thereof fall within one or more grounds for
denial appearing in §87(2)(a) through (i) of the Law. Moreover,
long before the enactment of the Freedom of Information Law, it was
established by the courts that records pertaining to the assessment
of real property are generally available [see e.g., Sears Roebuck
& Co. v. Hoyt, 107 NYS 2d 756 (1951); Sanchez v. Papontas, 32 AD 2d
948 (1969).

In an effort to enhance compliance with and understanding of
the Freedom of Information Law, copies of this opinion will be
forwarded to City officials.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Commissioner of Finance
Records Access Officer