March 26, 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 will confirm that an agency may charge certain fees, even for the inspection of records, when it has authority to redact such records prior to inspection.  Legal authority to charge such fees is set forth in the enclosed advisory opinion.  Additional related opinions may be found on our FOIL Advisory Opinion Index under “F” for “Fees.”

In sum and based on the analysis provided therein, an agency can charge $.25 per photocopy when the record contains redacted material, or it can charge the salary of the lowest paid employee capable of preparing electronic records when two or more hours are needed to do so.  There is no authority in the law to charge for time spent reviewing records or redacting records prior to disclosure, whether they be paper or electronic.

Regulations promulgated by the Committee having the full force and effect of law require that a records access officer “[a]ssist persons seeking records to identify the records sought, if necessary, and when appropriate, indicate the manner in which the records are filed, retrieved or generated.” (21 NYCRR §1401.2[b][2].) 

Accordingly, and because simple requests may encompass many more records than intended, when an agency requires payment of an amount that seems extraordinary, my recommendation is that the applicant call and/or write to the agency request information regarding how the records would be retrieved and a breakdown of the fees.  In the event that the break down is not in keeping with the analysis provided above, I recommend that the applicant appeal.


Camille S. Jobin-Davis
Assistant Director

CSJ: paf