December 30, 2014
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 facts presented in your correspondence.
Although we might have discussed the matter of fees that may be charged in response to a request made pursuant to the Freedom of Information Law (FOIL), in an effort to provide written guidance, I offer the following comments.
I believe that the issue was precipitated by a response to a request made to the City of Ithaca in which it was indicated that staff would need to review records to determine which among those requested must be disclosed or may be withheld. As I understand the matter, a significant aspect of the fee sought to be assessed involved the time to be expended by an attorney to review records to determine rights of access, for the City sought a prepayment of several hundred dollars “to compensate for City time in reviewing e-mail correspondence.”
From my perspective, once records have been “prepared”, no fee can be charged for the time needed to read and review them.
Section 87(1) of the FOIL requires agencies to adopt rules and regulations concerning the procedural implementation of that statute, and paragraph (b)(iii) of that provision refers to fees for copies and includes two standards. The first pertains to photocopies, and the second to “other” records. Specifically, an agency’s rules and regulations are required to 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 in accordance with the provisions of paragraph (c) of this subdivision...” Paragraph (c) states:
“In determining the actual cost of reproducing a record, an agency may include only:
i. an amount equal to the hourly salary attributed to the lowest paid agency employee who has the necessary skill required to prepare a copy of the requested record;
ii. the actual cost of the storage devices or media provided to the person making the request in complying with such request;
iii. the actual cost to the agency of engaging an outside professional service to prepare a copy of a record, but only when an agency’s information technology equipment is inadequate to prepare a copy, if such service is used to prepare the copy; and
iv. preparing a copy shall not include search time or administrative costs, and no fee shall be charged unless at least two hours of agency employee time is needed to prepare a copy of the record requested. A person requesting a record shall be informed of the estimated cost of preparing a copy of the record if more than two hours of an agency employee’s time is needed, or if an outside professional service would be retained to prepare a copy of the record.”
Based on the language of the statute, it is clear that the only fee that may be charged when a request involves photocopies of paper records up to nine by fourteen inches is a maximum of twenty-five cents per photocopy; no additional fee may be charged for employee time, for search, redactions, etc. Employee time may be charged only when the request involves “other” records, those that are larger than nine by fourteen inches or which are maintained electronically, and even then, only in circumstances in which at least two hours of employee time are needed to prepare the records.
Further, in our view, no fee may be charged for the time needed to review and/or make redactions from records, for the records reviewed or from which redactions may be made have already been “prepared.” FOIL has never authorized a fee for the time taken by an attorney, for example, or staff to read and consider the content of records that have been prepared to determine which records or portions of records are available or perhaps deniable. The fee for preparing a record in our view would involve the time taken, for instance, to enter queries, segregate fields within a database or engage in the processes needed to extract information maintained electronically.
I hope that I have been of assistance. If ever you believe that we can help, please do not hesitate to contact me.