October 25, 1994
Mr. Jimmie Burton
P.O. Box 51
Comstock, NY 12821
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. Burton:
I have received your letter of September 30 in which you raised questions relating to the Freedom of Information Law.
The first involves unanswered requests for records directed to the Nassau County Clerk and the office of the court reporter. The question is whether the records of those offices are subject to the Freedom of Information Law. In this regard, as you are aware, the Freedom of Information Law excludes the judiciary from its coverage. From my perspective, when a county clerk is acting in his or her capacity as court clerk, the records fall beyond the coverage of the Freedom of Information Law. Sections 8019 to 8021 of the Civil Practice Law and Rules deal with the duties of county clerks and include specific direction concerning the fees that they may charge for certain services. I note that §8019(f)(1) authorizes a county clerk to charge "fifty cents per page with a minimum free of one dollar", "to prepare a copy of any paper record on file in his office." It is suggested that a request for court records maintained by a county clerk be requested pursuant to §8019 of the Civil Practice Law and Rules and that the appropriate fee be included.
With respect to records of a court reporter, I believe that such records are in the legal custody of the clerk of the court. Consequently, a request for those records should in my view be forwarded to the clerk of the appropriate court.
The other pertains to a request for photographs. You wrote that you were informed that the fee for duplicate photographs would be $18 each. Due to the amount of the fee, you indicated that you want to inspect the records. Since you are incarcerated, you asked whether it is your right to ask the agency to send the photographs to your facility for your inspection.
With regard to fees, §87(1)(b)(iii) of the Freedom of Information Law states that an agency's rules and regulations must include reference to:
"the fees for copies of records which shall not exceed twenty-five cents per photocopy not in excess of nine inches by fourteen inches, or the actual cost of reproducing any other record, except when a different fee is otherwise prescribed by statute.
As I interpret that language quoted above, unless a different statute authorizes other fees, the first clause provides that an agency may charge up to twenty-five cents per photocopy for records up to nine by fourteen inches. The next clause, which deals with the "actual cost of reproduction", pertains to "other" records, i.e., those records that cannot be duplicated by means of photocopying, such as photographs. Therefore, if, for example, the actual cost of reproducing a photograph is five dollars, I believe that a fee in that amount could appropriately be assessed. It is also noted that in a decision in which an inmate claimed indigency, it was held that nothing in the Freedom of Information requires a waiver or reduction of fees that may otherwise be charged [see Whitehead v. Morgenthau, 552 NYS 2d 518 (1990)].
Lastly, §87(2) of the Freedom of Information Law requires that accessible records be made available for inspection and copying, and the regulations promulgated by the Committee on Open Government state in part that "[e]ach agency shall designate the locations where records shall be available for public inspection and copying" (21 NYCRR §1401.3). In my view, neither the Law nor the regulations require that records be transferred from their usual locations to accommodate an applicant at a site convenient to the applicant. In short, while inmates may be indigent or unable to travel, I do not believe that an agency is required to make records available at other than its designated or customary locations.
I hope that I have been of some assistance.
Robert J. Freeman