April 7, 2016
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, except as otherwise indicated.
We are writing in response to an inquiry from Mr. Equarn White relating to the fees you have assessed him for a copy of a video. In our opinion, your agency’s proposed fees relating to the cost of reproducing the video are inconsistent with the law.
On March 14, 2016, Ms. Candace Watson, the Administrative Assistant for the Committee on Open Government wrote to Mr. White, with a copy sent to you, explaining the fee provisions of the Freedom of Information Law (FOIL, copy enclosed). Subsequent to the issuance of the Committee’s opinion relating to your proposed fees, it is our understanding that Mr. White resubmitted his request and again was advised by the records access officer that he would be charged the hourly salary of the individual who was responsible for making a copy of the video (1.5 hours x $21.71) and the hourly salary of the individual assigned to review the video (1.5 hours x $40.20). I am writing now in an attempt to provide additional guidance on this matter.
The specific language of FOIL and the regulations promulgated by the Committee on Open Government indicate that, absent statutory authority, an agency may charge fees only for the reproduction of records. Section 87(1)(b) of FOIL states:
"Each agency shall promulgate rules and regulations in conformance with this article...and pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the availability of records and procedures to be followed, including, but not limited to...
“iii. the fees for copies of records which shall not exceed twenty-five cents per photocopy not in excess of nine inches by fourteen inches, or the actual cost of reproducing any other record in accordance with the provisions of paragraph (c) of this subdivision, except when a different fee is otherwise prescribed by statute.”
The regulations promulgated by the Committee state in relevant part that:
"Except when a different fee is otherwise prescribed by statute:
(a) An agency shall not charge a fee for the following:
(1) inspection of records for which no redaction is permitted;
(2) search for, administrative costs of, or employee time to prepare photocopies of records;
(3) review of the content of requested records to determine the extent to which records must be disclosed or may be withheld; or
(4) any certification required pursuant to this Part.” (21 NYCRR section 1401.8).(emphasis mine)
As such, the Committee's regulations specify that no fee may be charged for personnel time, for inspection of or search for records, except as otherwise prescribed by statute.
Section 87(1)(c) of FOIL sets forth the parameters for calculating the “actual costs of reproducing” records other than paper records in excess of nine by fourteen inches. This section provides as follows:
“(c) In determining the actual cost of reproducing a record, an agency may include only:
i. 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;
ii. the actual cost of the storage devices or media provided to the person making the request in complying with such request;
iii. the actual cost to the agency of engaging an outside professional service to prepare a copy of a record, but only when an agency’s information technology equipment is inadequate to prepare a copy, if such service is used to prepare the copy; and
iv. preparing a copy shall not include search time or administrative costs, and no fee shall be charged unless at least two hours of agency employee time is needed to prepare a copy of the record requested. A person requesting a record shall be informed of the estimated cost of preparing a copy of the record if more than two hours of an agency employee’s time is needed, or if an outside professional service would be retained to prepare a copy of the record.” (emphasis mine)
In sum, when more than two hours are needed to prepare such records, the agency is permitted to assess a fee based on either the hourly wage of the lowest paid employee capable of preparing the record, multiplied by the number of hours the employee spent preparing the record, and the cost of the storage device or media provided to the applicant, or, when the agency does not have adequate information technology equipment to prepare a copy, the actual cost of engaging an outside professional service. In the event that more than two hours of employee time is necessary to prepare a record, or if it is necessary to retain an outside professional service, the agency is required to inform the applicant prior to incurring the cost of preparing the record.
As mentioned above, an agency may not charge a fee for “search time or administrative costs” or for “review of the content of requested records to determine the extent to which records must be disclosed or may be withheld.” In our opinion, the agency’s proposed fee of $60.30 to cover the cost of the “Lt. Review Time” is inconsistent with the law. Insofar as the proposed fee does not involve the “preparation” of records, but rather the time needed to review the records, the fee sought to be assessed exceeds that permitted by FOIL. (See Matter of Weslowski v Vanderhoef, 98 AD3d 1123, “The conclusion of the Committee on Open Government that FOIL does not permit an agency to charge for employee time spent searching for paper documents is not unreasonable or irrational, given the provision of the statute which provides that ‘preparing a copy shall not include search time or administrative costs’ (Public Officers Law §87(1)(c)(iv).”)
It is my understanding that the “Loronix time” is the amount of time necessary for an employee with the required skills to prepare a copy of the video. According to the explanation of fees provided in response to Mr. White’s request, it only took 1.5 hours to prepare a copy of the video. As mentioned above, §87(1)(c) of FOIL states that “no fee shall be charged unless at least two hours of agency employee time is needed to prepare a copy of the record requested.” It appears, based on the information included in your March 22, 2016 letter to Mr. White, that the only fee that would be permitted under the law is the “actual cost of the storage devices or media” used to store a copy of the video ($.60).
This advisory opinion is offered in an effort to encourage the agency to reconsider its proposed fees in an effort to give effect to the language and intent of FOIL.
cc: DOCCS Office of Counsel