August 27, 1996
Ms. Beverly L. Ouderkirk
Superintendent of Schools
Valley Central School District
944 State Route 17K
Montgomery, NY 12549-2240
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. Ouderkirk:
I have received your letter of August 21. You have asked that I confirm an opinion rendered during a telephone conversation with your staff. In brief, it was advised that when an agency produces copies of records in response to a request but the applicant for the records has not paid the requisite fee, the agency can refuse to honor further requests until the fee is paid.
There is no judicial decision of which I am aware that is pertinent to the matter. However, from my perspective, when a request for copies of records is served upon an agency, both the agency and the applicant bear a responsibility. The agency is responsible for compliance with the Freedom of Information Law by retrieving the records sought and disclosing them to the extent required by law. The agency is also required to produce copies of records "[u]pon payment of, or offer to pay, the fee prescribed therefor" [see Freedom of Information Law, §89(3)]. Concurrently, if the applicant requests copies, I believe that he or she bears the responsibility of paying the appropriate fee.
If an agency has prepared copies of records in good faith and the applicant fails or refuses to pay the fee, I do not believe that the agency would be required to make available those copies that have been prepared. In my view, it follows that an agency should not be required to honor ensuing requests until the applicant has fulfilled his or her responsibility by tendering the fee for copies previously made. I hope that I have been of assistance.
Robert J. Freeman