July 5, 1994
Ms. June Maxam
The North Country Gazette
Chestertown, NY 12817
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. Maxam:
I have received your letter of June 20 in which you sought an opinion concerning the Freedom of Information Law.
According to your letter, having made a request to inspect certain records, rather than being shown the kinds of records that were made available in response to prior similar requests, you were given computer printouts, some of which contained minimal information, and the agency has sought to charge one dollar per page. Since you did not request copies and because you believe the fee to be excessive, you did not pay. However, in response to an ensuing request, you were informed that it would not be granted until you made payment on the preceding request.
In this regard, I offer the following comments.
First, in my opinion, when an applicant asks to inspect records, if the records exist and are accessible under the Freedom of Information Law, no fee may be charged. If copies are requested, under §87(1)(b)(iii) of the Freedom of Information Law, unless a different fee is prescribed by statute, an agency may charge up to twenty-five cents per photocopy up to nine by fourteen inches, or the actual cost of reproducing other records (i.e., those that cannot be photocopied, such as computer tapes, disks, etc.). In this instance, I believe that the agency should have made the records available for inspection at no charge or, if a computer printout had to be generated, the agency should have informed you in advance what the fee would be. By so doing, you would have an opportunity to pay, perhaps discuss the fee, or withdraw your request.
Second, when a person requests copies of records and the agency produces the records as required by law, but the applicant has not paid or refuses to pay the fee, based on principles of fairness, it has been suggested that agencies need not accede to ensuing requests until the applicant has paid the requisite fee regarding the earlier request for copies. Based upon the facts that you provided, since you asked to inspect the records and did not seek copies, the agency's refusal to honor an ensuing request is, in my view, inappropriate.
Lastly, even if you requested copies, it is likely that the fee of one dollar per page for a computer printout is excessive. 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 printout would involve the cost of computer time, plus the cost of an information storage medium (i.e.,paper).
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)].
I hope that I have been of some assistance.
Robert J. Freeman
cc: Frederick C. Lamy, Sheriff