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June 13, 1994

 

 

Hon. Michael J. Connery
Supervisor
Town of Ticonderoga
P.O. Box 471
Ticonderoga, NY 12883

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 Supervisor Connery:

I have received your letter of May 18 in which you raised a variety of issues relating to the Freedom of Information Law.

In your first area of inquiry, you referred to situations in which requests involve hours of searching. From my perspective, a key issue in terms of the Freedom of Information Law is whether a request "reasonably describes" the records sought as required by §89(3) of the Law. It has been held that a request reasonably describes the records when the agency can locate and identify the records based on the terms of a request, and that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

Although it was found in the decision cited above that the agency could not reject the request due to its breadth, it was also stated that:

"respondents have failed to supply any proof whatsoever as to the nature - or even the
existence - of their indexing system: whether the Department's files were indexed in a
manner that would enable the identification and location of documents in their possession
(cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192
[Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of
Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing
system was such that 'the requested documents could not be identified by retracing a path
already trodden. It would have required a wholly new enterprise, potentially requiring a
search of every file in the possession of the agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate's name and identification number. On the other hand, if particular records cannot be located except by means of a review of what may
be hundreds or thousands of records individually, the request would in my opinion not reasonably describe the records. In that event, the records access officer could explain that the records are not kept in a manner that would permit their retrieval in conjunction
with the terms of the request and indicate how the records are kept. In addition, assuming that the records are public, the Town could offer to let the applicant review the records in order that
he or she could locate those of interest.With respect to fees for postage, this office has not advised that such costs cannot be imposed. The Freedom of Information Law does not address the issue, and there is no statute of which I am aware that would preclude the Village from charging its postage cost when mailing records requested under the Freedom of
Information Law.

Further, it has been advised that an agency may require payment of fees for copying in advance of preparing copies. If, for example, a request is voluminous, an estimate of the numbers of
copies could be made, and the applicant could be informed of the approximate cost and that copies will be made upon payment of the appropriate fee.

You referred to a request made by a "recluse" and asked whether it is that person's "obligation to send a volunteer at their cost to obtain the 'accessible' information." In this regard, an applicant for records may view records at the Town Hall, request photocopies by mail, in which case up to twenty-five cents per photocopy plus the cost of postage could be charged, or the
recluse could have a friend or "volunteer" pick up or make copies.

Second, you indicated that meetings of the Town Board have been videotaped and are aired on public access television. You wrote, however, that the Town does not have the capacity to copy
them. In my opinion, the Town is not required to purchase new equipment to acquire that capacity. If a copy of a videotape is requested, a local commercial service or perhaps a school or library could reproduce the tape, in which case, the Town could charge the actual cost of reproduction. Stated differently, whatever cost the Town incurs in order to prepare a duplicate could be passed on to an applicant seeking a copy.

Third, you asked whether the Town can charge one dollar per page for copies of Planning Board minutes. In my opinion, unless a statute, an act of the State Legislature, authorizes an agency to charge a fee for 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.

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

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 states 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.

Lastly, 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)].

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
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