From:   Freeman, Robert (DOS)
Sent:    Wednesday, May 15, 2013 3:00 PM
Cc:       ''
Subject:           RE: FOIL Request Control No. 1315

Dear :

            I have received your note - - the response to your request by SUNY regarding fees is not, in my view, entirely clear. 

            Section 87(1)(c) of FOIL authorizes an agency to establish a fee based on the actual cost of reproducing records that are maintained electronically.  If it takes 2 hours or more to prepare the records sought, an agency may charge a fee based on the hourly salary of the lowest paid employee able to do so, plus the cost of the storage media.  If it takes less than two hours, the actual cost would involve only the storage media.

            The issue with respect to the response involves the term “prepare.”   We agree that the effort needed to extract records or data involves the preparation of records.  If redaction is accomplished electronically, that, too would likely be found by a court to reflect the preparation of a record.  However, if, for example, records are extracted and exist in paper form, and if redactions are made manually, the process of redacting would not, in our opinion, constitute the preparation of records; the records would already have been prepared, and the agency would redact or delete portions of those records already prepared in order to disclose the remainder.  No fee may be charged in that latter circumstance.

I hope that I have been of assistance.