February 24, 2015
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.
This is in response to your query regarding the public’s authority to scan or take digital pictures of records on file at the offices of county clerks that are the subject of fee provisions contained within the CPLR. In short, the law is not clear.
As background, this will confirm that the fee for copies of records other than photocopies, according to §87(1)(b)(iii) of the Freedom of Information Law, is based on the actual cost of reproduction, unless a different fee is prescribed by statute. The question in this instance is whether a fee assessed by a county clerk for records made available for inspection and digital copying through use of a digital camera or independently-powered scanning device should be based on the actual cost of reproduction in accordance with the language of the FOIL or the Civil Practice Law and Rules (CPLR). We know of no judicial determination that has considered the issue.
As you are aware, §§8018 through 8021 of the CPLR require that county clerks charge certain fees in their capacities as clerks of court and other than as clerks of court. Since those fees are assessed pursuant to statutes other than the Freedom of Information Law (FOIL), we believe that they may exceed those permitted under the Freedom of Information Law. As stated in §8019, “The fees of a county clerk specified in this article shall supersede the fees allowed by any other statute for the same services....”
By means of example, subdivision (f) of §8019, entitled “Copies of records”, states in relevant part that:
“The following fees, up to a maximum of forty dollars per record shall be payable to a county clerk or register for copies of the records of the office except records filed under the uniform commercial code:
1. to prepare a copy of any paper or record on file in his office, except as otherwise provided, sixty-five cents per page with a minimum fee of one dollar thirty cents.”
If a record subject to subdivision (f) is reproduced on paper, i.e., by means of a photocopy machine, it would be clear in our opinion that the Freedom of Information Law would not be applicable and that a county clerk could charge “sixty-five cents per page with a minimum fee of one dollar thirty cents....” If the record is not reproduced on paper by the county clerk, but the applicant merely takes a digital image of the record, it is unclear whether that would transfer the basis for charging a fee to the Freedom of Information Law, or whether §8019(f) would continue to govern.
While we are unfamiliar with the legislative history of §8019, we would conjecture that the Legislature in enacting that and other sections within Article 80 of the CPLR, intended that county clerks, in their capacities as clerks of court and otherwise, carry out certain duties and assess certain fees for performing particular services. When those provisions were initially enacted in 1963, the advances in information technology that have become commonplace could not have been envisioned. It would seem that the provisions concerning fees were intended, perhaps in part, to generate revenue. If that is so, the photographing or scanning of paper records would involve minimal cost or none at all, thereby defeating the intent of those statutes.
In 2008, a fifth paragraph was added to subdivision (f) of §8019, which directs that fees for copies of records on file at county clerks’ offices that are made “in a medium other than paper” shall be governed by the actual cost of reproducing the record, in accordance with §87(1)(c) of FOIL. Adopted in conjunction, these provisions permit the county clerk, like other agencies subject to FOIL, the authority to charge when the preparation of an electronic record requires more than two hours of an employee’s time. At the time of adoption, based on our review of the accompanying bill jacket, fees for inspecting records and preparing one’s own digital copy were not contemplated.
This will confirm our observation in FOIL-AO-18219, that there appears to be no statutory basis to preclude a member of the public from copying paper records of the county clerk through use of his or her own digital device. Use of a small scanning device with an independent power source would not involve any use of agency resources or disruption of its activities different from inspection of records; however, because we are unfamiliar with the intent of the State Legislature concerning the fee provisions of the CPLR at issue, it is unclear which statute a court would apply.
We wish we were able to provide more definitive advice.
Camille S. Jobin-Davis