October 27, 2015




FROM:            Robert J. Freeman, Executive Director



Assuming that a request involves existing records, FOIL and the regulations promulgated by the Committee on Open Government, which have the force and effect of law (21 NYCRR Part 1401), offer direction.

Section 89(3)(a) of FOIL states in part that when an agency provides access to a copy of a record, the agency “shall certify to the correctness of such copy if so requested, or as the case may be, shall certify that it does not have possession of such record or that such record cannot be found after diligent search.”  The regulations (21 NYCRR §1401.2(b) direct that the “The records access officer is responsible for assuring that agency personnel…..(6) Upon request, certify that a record is a true copy. (7) Upon failure to locate records, certify that (i) the agency is not the custodian for such records; or (ii) the records of which the agency is a custodian cannot be found after diligent search.”

From there, §1401.8 states that “Except when a different fee is otherwise prescribed by statute: (a) An agency shall not charge a fee for the following…(4) any certification required pursuant to this Part…”

Based on the foregoing, no fee can be charged if a copy of an existing record is made available and the recipient asks that the agency certify that the record is a true copy of its record.  I note, too, that the term “statute” has been determined to be an enactment of the State Legislature and that a local law or ordinance, for example, does not constitute a statute.

I hope that the foregoing serves to clarify and that I have been of assistance.