FOIL AO 19539
February 27, 2017
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 in receipt of your request for an advisory opinion regarding the fee assessed by the Town of Mt. Pleasant for the time to retrieve records in response to a Freedom of Information Law (FOIL) request.
In response to your request for records, the Town’s records access officer advised you that “[t]he information you requested was archived and took a considerable amount of time to retrieve. Under FOIL regulations, we are allowed to charge the hourly rate of the lowest paid person in the department.” In our opinion, the proposed fee is inconsistent with the law and regulations promulgated by the Committee on Open Government.
The specific language of FOIL and the Committee’s regulations 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 cost 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 $77.50 to cover the cost of the time it took to retrieve the records is inconsistent with the law. Insofar as the proposed fee does not involve the “preparation” of records, but rather the time needed to retrieve, and perhaps 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).”)
As a secondary matter, I note that in your February 7, 2017 letter to the Town, you assert that the Town is required to comply with §87(4)(c) of FOIL:
“Each state agency that maintains a website shall post information related to this article and article six-A of this chapter on its website. Such information shall include, at a minimum, contact information for the persons from whom records of the agency may be obtained, the times and places such records are available for inspection and copying, and information on how to request records in person, by mail, and, if the agency accepts requests for records electronically, by e-mail. This posting shall be linked to the website of the committee on open government.” (emphasis is mine)
As you will note, the first sentence of this provision limits its applicability to state agencies. Section 87(4)(b) of FOIL defines “state agency” to mean “only a state department, board, bureau, division, council or office and any public corporation the majority of whose members are appointed by the governor.” As such, this provision does not apply to local government municipalities such as cities, towns, and villages.
I hope that I have been of assistance.
cc: Patricia June Scova