From:   Freeman, Robert (DOS)
Sent:    Tuesday, January 05, 2010 9:45 AM
Cc:       Donegan, Michael (SCOC); Caher, John (DCJS);
Subject:           FOIL request - fees


I have received your correspondence concerning a response to request for certain records of the State Commission of Correction.  The response referred to an advisory opinion rendered by this office and a judicial decision indicating that when a record includes information that may properly be redacted or deleted, an applicant does not have the right to inspect the record at no charge; rather, in that circumstance, the agency, if asked to do so, must prepare a copy from which the proper redactions/deletions are made, and it may charge up to 25 cents per photocopy. 

The response also cited a recent amendment to the Freedom of Information Law, §87(1)(c), which states that if the preparation of records involves two hours or more, an agency may charge “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.”  If your request involves photocopies from which deletions/redactions would be made, I do not believe that the quoted provision would apply; rather, the agency would be limited to charging a maximum of twenty-five cents per photocopy, and no fee for employee time could be assessed.

Section 87(1)(b) of the Freedom of Information Law requires that each agency develop rules and
regulations involving the procedural implementation of the law, as well as “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 in accordance with the provisions of paragraph (c) of this subdivision…” (emphasis mine).  In short, the ability to charge a fee based on the actual cost of reproduction, and if two hours or more may be needed to prepare records, the salary of an employee, does not include requests that involve photocopies of records.  “Other records” are those that do not exist on paper or are larger than nine by fourteen inches; most often the provisions involving actual cost of reproduction, rather than photocopying, apply to records that are maintained or stored electronically.

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

Robert J. Freeman, Executive Director
Committee on Open Government
Department of State
One Commerce Plaza, Suite 650
99 Washington Avenue
Albany, NY 12231
Phone: (518)474-2518
Fax: (518)474-1927