From: Freeman, Robert (DOS)
Sent: Tuesday, April 03, 2012 8:31 AM
Subject: RE: FOIL fees

Good morning -

As a general matter, no fee may be charged to "locate" records. The first clause in 87(1)(b)(iii) states that the fee for photocopies up to 9 by 14 inches is a maximum of 25 cents per photocopy. No fee can be charged for
inspection, search, or other administrative costs associated with disclosure.
The next clause refers to "other" records, those that are larger than 9 by 14 or, more commonly today, are maintained electronically. In that latter circumstance, an agency may assess a fee based on the actual cost of
reproduction. Section 87(1)(c) indicates that an agency may establish a fee based on the hourly salary of the lowest paid employee able to accomplish the task, plus the cost of the storage media, but only when two hours or more are needed to "prepare" the records. If it takes less than two hours to do so, the only fee would involve the cost of the media, i.e., tape, disks, paper, etc.

Perhaps more important in relation to your question is the obligation to "reasonably describe" the records sought as required by section 89(3)(a). In short, a request meets that standard when an agency has the ability to locate
and identify records with reasonable effort. Often pertinent is the means by which an agency maintains, files, indexes or retrieves its records. An example that I offer involves the situation in which you enter a government
office and see the Westchester telephone directory. If you request all of the listings identifying people whose last name is Cohen, the request would meet the standard, because the listings appear by last name alphabetically. Even if there are 10,000 Cohens, the request would reasonably describe the records.
If, however, the request is for the Debras, the search would involve a review of thousands of listings, one by one. In that circumstance, the request would not meet the standard, and the agency would not be required to search for the needles in the haystack. Often, however, today, the equivalent record may be maintained electronically, and it may be easy to extract all of the Debras.
If that is the case, an agency would be required to do so [see last sentence of section 89(3)(a)]. If that can be accomplished in less than two hours, the fee would likely be minimal.

I hope that this will be of assistance. If you would like to discuss the issue, please feel free to call.


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