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Ms. Carol W. LaGrasse
P.O. Box 75
Stony Creek, NY 12878
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. LaGrasse:
I have received your letter in which you questioned the propriety
of an “administrative fee” sought to be imposed by
the Village of Ellenville, in addition to a fee for photocopying.
The fee, according to the Village Attorney, is intended to “cover
the time taken away from the searching officer’s attention
to its other daily duties.”
From my perspective, unless a statute, an act of the State
Legislature, authorizes an agency to charge a fee for personnel
time, searching for records or charging more than twenty-five
cents per photocopy for records up to nine by fourteen inches,
no such fees may be assessed. In this instance, I know of no
statute that would authorize the Village to do so.
By way of background, §87(1)(b)(iii) of the Freedom of
Information Law stated until October 15, 1982, that an agency
could charge up to twenty-five cents per photocopy unless a different
fee was prescribed by “law”. Chapter 73 of the Laws
of 1982 replaced the word “law” with the term “statute”.
As described in the Committee’s fourth annual report to
the Governor and the Legislature of the Freedom of Information
Law, which was submitted in December of 1981 and which recommended
the amendment that is now law:
“The problem is that the term ‘law’ may include
regulations, local laws, or ordinances, for example. As such,
state agencies by means of regulation or municipalities by means
of local law may and in some instances have established fees
in excess of twenty-five cents per photocopy, thereby resulting
in constructive denials of access. To remove this problem, the
word ‘law’ should be replaced by ‘statute’,
thereby enabling an agency to charge more than twenty-five cents
only in situations in which an act of the State Legislature,
a statute, so specifies.”
As such, prior to October 15, 1982, a local law, an ordinance,
or a regulation for instance, establishing a search fee or a
fee in excess of twenty-five cents per photocopy or higher than
the actual cost of reproduction was valid. However, under the
amendment, only an act of the State Legislature, a statute, would
in my view permit the assessment of a fee higher than twenty-five
cents per photocopy, a fee that exceeds the actual cost of reproducing
records that cannot be photocopied, or any other fee, such as
a fee for search. In addition, it has been confirmed judicially
that fees inconsistent with the Freedom of Information Law may
be validly charged only when the authority to do so is conferred
by a statute [see Sheehan v. City of Syracuse, 521 NYS
2d 207 (1987)].
The specific language of the Freedom of Information Law and
the regulations promulgated by the Committee on Open Government
indicate that, absent statutory authority, an agency may charge
fees only for the reproduction of records. Section 87(l)(b) of
the Freedom of Information Law states:
“Each agency shall promulgate rules and regulations in
conformance with this article...and pursuant to such general
rules and regulations as may be promulgated by the committee
on open government in conformity with the provisions of this
article, pertaining to the availability of records and procedures
to be followed, including, but not limited to...
(iii) the fees for copies of records which shall not exceed
twenty-five cents per photocopy not in excess of nine by fourteen
inches, or the actual cost of reproducing any other record, except
when a different fee is otherwise prescribed by statute.”
The regulations promulgated by the Committee states in relevant
part that:
“Except when a different fee is otherwise prescribed
by statute:
(a) There shall be no fee charged for the following:
(1) inspection of records;
(2) search for records; or
(3) any certification pursuant to this Part” (21 NYCRR section
1401.8).
As such, the Committee’s regulations specify that no
fee may be charged for personnel time, for inspection of or search
for records, except as otherwise prescribed by statute.
Lastly, although compliance with the Freedom of Information
Law involves the use of public employees’ time, the Court
of Appeals has found that the Law is not intended to be given
effect “on a cost-accounting basis”, but rather that
“Meeting the public’s legitimate right of access to
information concerning government is fulfillment of a governmental
obligation, not the gift of, or waste of, public funds”
[Doolan v. BOCES, 48 NY 2d 341, 347 (1979)].
I hope that I have been of assistance.
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Sincerely, |
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Robert J. Freeman
Executive Director |
RJF:jm
cc: Board of Trustees
Philip M. Cataldi |
