May 4, 1995
Hon. Susan Ciamarra
Village of Tuckahoe
65 Main Street
Tuckahoe, NY 10707
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 Ms. Ciamarra:
I have received your letter of March 29 in which you sought an advisory opinion relating to the Freedom of Information Law.
As I understand the matter, a State audit report and the Village's tentative budget were made public at open, televised meetings of the Board of Trustees, and it has been contended that a request for those records need not be made pursuant to the Freedom of Information Law. In addition, you wrote that the individual "also complained that 25 [cents] per copy is too costly and that copies of the information should be made available at no charge to the taxpayer.
In this regard, I offer the following comments.
First, the Freedom of Information Law includes all agency records within its coverage, including those that were made public at the meeting, and §89(3) of the Law states in part that an agency may require that a request be made in writing. Therefore, while an agency may accept an oral request, I believe that it may in most instances require a written request.
I note that §5-508 of the Village Law pertains specifically to the process of adopting a budget. As you are aware, a hearing must be held on the tentative budget, and subdivision (3) of §5-508 states in part that: "The notice of hearing shall state the time when and place where such public hearing will be held, the purpose thereof and that a copy of the tentative budget is available at the office of the village clerk where it may be inspected by any interested person during office hours" (emphasis added). Based on that provision, I do not believe that a written request should be needed to inspect the tentative budget, because the right to inspect is clearly conferred by the Village Law; however, a village could in my opinion require that a written request be made if a photocopy of the tentative budget is requested, for §5-508 makes no specific reference to copies. Similarly, §35 of the General Municipal Law states that an audit report prepared by the Office of the State Comptroller "shall be a public record open to inspection by any interested person." It would seem that the procedures ordinarily used regarding the Freedom of Information Law need not be employed when a request is made to inspect an audit; again, however, a written request may be required if a copy is sought.
The foregoing is not intended to suggest that written requests must be demanded, for it is clear that the records in question must be made available. On the contrary, an agency may accept and respond to oral requests, particularly when records are readily retrievable and unquestionably public.
Second, with respect to fees for copies, §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."
Based upon the foregoing, unless a different statute authorizes other fees, the first clause of the provision quoted above provides that an agency may charge up to twenty-five cents per photocopy for records up to nine by fourteen inches. Whether the actual cost of photocopying is more or less than twenty-five cents, an agency is clearly authorized to establish and charge a fee of up to twenty-five cents per photocopy. I point out, however, that no fee may be charged for the inspection of records accessible under the Law.
I hope that I have been of some assistance.
Robert J. Freeman