August 1, 1994
Mr. Matthew Lee
Inner City Press
Community on the Move
PO Box 416, HUB Station
Bronx, NY 10455
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence. Dear Mr. Lee and Ms. Ludwig:
I have received your letter of July 15, in which you seek an opinion concerning the Freedom of Information Law.
You wrote that several months ago, the New York City Department of Housing Preservation and Development ("HPD") began charging "25 cents for all pages on which the agency makes redactions on documents responsive to FOIL requests by the public" and that the fee is assessed "prior to inspection, irrespective of whether the party making the FOIL request ultimately purchases a copy of the document." It is your view, for several reasons, that HPD's "application of the fee is abusive and arbitrary, and aims ultimately to limit access to information." For instance, you wrote that HPD makes copies of every page made available to you for inspection, whether or not redactions have been made. In an example of "abusiveness", you referred to a request for a list of buildings owned and managed by proposed developers and indicated that "[a]lthough the developer's social security number was the only redacted item on the page, HPD sought to charge [you] 25 cents to review every single page of the lists." You contend that "[t]he design of the form in this instance allows HPD to charge for redacting the social security number on each page even though the rest of the information on each page is clearly public."
In this regard, as you are aware, when a record is available in its entirely under the Freedom of Information Law, any person has the right to inspect the record at no charge. However, there may often be situations in which some aspects of a record, but not the entire record, may properly be withheld in accordance with the ground for denial appearing in §87(2). In that event, I do not believe that an applicant would have the right to inspect the record. In order to obtain the accessible information, upon payment of the established fee, I believe that the agency would be obliged to disclose those portions of the records after having made appropriate deletions from a copy of the record.
When accessible and deniable information must, of necessity, appear on the same page, the practice preparing a redacted copy and charging the established fee, in my opinion, is fully justifiable. However, if records are designed to ensure that some portion of the content of each page may be withheld, and if the design is intended to ensure that records cannot be inspected at no charge, I would agree that such a practice would represent an abuse of the Freedom of Information Law and conflict with its clear intent. Section 84 of the Freedom of Information Law, the statement of legislative declaration, provides in part that:
"As state and local government services increase and public problems become more sophisticated and complex and therefore harder to solve, and with the resultant increase in revenues and expenditures, it is incumbent upon the state and its localities to extend public accountability whenever and whenever feasible."
Based on the foregoing, the Freedom of Information Law is intended to serve as a vehicle that overcomes barriers to access. If an agency creates barriers unnecessarily or fails to eliminate barriers when doing so could be easily accomplished, I believe that it would be acting in a manner contrary to the spirit and intent of the statute.
Lastly, it is possible that HPD makes copies of documents disclosed to you in order to have an accurate record of disclosures. It may be important to know which portions of records were withheld when records are the subject of an appeal made under the Freedom of Information Law or if litigation is initiated.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Alfred Schmidt, Records Access Officer