February 16, 2005
FROM: Robert J. Freeman, Executive Director
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.
As you are aware, I have received your letter of January 10 in which you indicated that "[o]n several occasions, after examining copies of official documents disclosable under FOIL, [you] have been told by governmental entity representatives, or found statements in the entities’ FOIL regulations or procedures, which prohibit [your] taking such pictures" with your digital camera. You have asked whether such prohibitions are consistent with law.
From my perspective, there is no valid basis for precluding you from copying records through the use of your own camera. Section 87(2) of the Freedom of Information Law specifies that accessible records must be made available for inspection and copying. Sections 87(1)(b)(iii) and 89(3) indicate that the only fee that an agency can charge involves its reproduction of records at the request of an applicant. Further, the regulations promulgated by the Committee on Open Government, which have the force and effect of law (21 NYCRR Part 1401), specify that no fee may be charged for the inspection of records.
Since no fee can be charged for inspecting records or for copying the contents of records by hand, an agency would not lose any proceeds when you take photographs of records. Further, your use of the camera, due to its size and independent power source, would not involve any use of agency resources or disruption of its activities different from inspection of records.
In good faith, I note that it has been held that a rule prohibiting the use of one's own photocopier has been found to be valid and reasonable when such use would cause disruption [see Murtha v. Leonard, 210 AD2d 411 (1994)]. However, the situation that you described is different, for there would be no use of the an agency's space or electricity, and there would be no distinction in terms of the agency's efforts in retrieving the records between the more traditional inspection of records and the use of your camera. In short, I believe that a prohibition of the use of your camera is unreasonable and inconsistent with law.
I hope that I have been of assistance.