August 14, 2002
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.
I have received your letter of July 26 and the correspondence attached to it. You asked whether, after reviewing the materials, I would concur with your policy of charging $3.00 to transport records from your facility to the Town Hall six miles away where records can be mailed in response to requests made under the Freedom of Information Law.
In my view, the charge is inappropriate. In your letter addressed to the Town Attorney on June 13, you expressed the view that the Freedom of Information Law does not require that records be mailed to those seeking copies of records. Very simply, I disagree. I believe that it is implicit that agencies must mail records to applicants. There are numerous instances in which those requesting records, for any number of reasons, cannot travel to a site to inspect records or to physically obtain copies. Persons may be disabled; they may reside long distances from the site of the records; they may work during business hours, precluding them from traveling to the site of the records; they may be incarcerated. As indicated in the opinion addressed to Mr. Sheehan last month, I believe that an agency may charge for postage. However, again, I also believe that, to give reasonable effect to the Freedom of Information Law and its intent, agencies are required to mail records to applicants.
I would conjecture that the Police Department and other entities within the Town of Lancaster that have facilities at locations other than the Town Hall, i.e., a Highway or Recreation Department facility, transfer items to the Town Hall where, in turn, they are transported to the post office to be mailed. If that is done as a matter of course, merely as part of the routine course of business or procedure of the Town, with no charge, I do not believe that a charge for carrying out the same procedure can be assessed when the item relates to a request made under the Freedom of Information Law. If the Police Department and other entities routinely charge a fee of $3.00 when any item is transferred from your facility to the Town Hall to be mailed, perhaps the practice would be sustained if challenged. However, if there is a charge only in relation to items mailed in response to requests under the Freedom of Information Law, I believe that a court would find the charge to be unreasonable and inconsistent with law.
As in other situations in which a person believes that a municipality has acted unreasonably or failed to carry out a duty in a manner consistent with law, he or she could initiate a proceeding under Article 78 of the Civil Practice Law and Rules to attempt to compel compliance with law.
I hope that I have been of assistance.
Robert J. Freeman
cc: Town Board
Richard J. Sherwood