July 31, 2018
FOIL AO 19683
From: Robert J. Freeman, Executive Director
Subject: non-payment of fee
I have received your letter of July 24. You have sought guidance “on how to collect payment on a FOIL request” that was granted. You wrote that you have “invoiced” the recipient of the records on three occasions but that no payment has been received to date. Significantly, you added that the same person recently submitted another FOIL request, and that you are “almost positive that his FOIL requests will continue in the future.”
As you suggested, I believe that the Board of Fire Commissioners could initiate a proceeding in small claims court to recover the money owed to the Fire District. I believe, however, that there is another method of encouraging payment. This office has consistently advised and did so in writing in 1996 that an agency need not honor a FOIL request in a situation in which the person seeking records owes money to the agency for copies of records previously disclosed. That opinion was confirmed by the Appellate Division, Second Department, which includes the St. James Fire District, in a decision rendered in 2008. In Fenstermaker v. Edgemont Union Free School District (48 AD3d 564), the decision indicates that:
“The respondent school district charged the petitioner $0.25 per copy for copies made pursuant to his FOIL request. The respondents correctly assert that this fee is permitted by statute (see Public Officers Law § 87 [b][iii]). Further, the school district’s position to delay fulfillment of a subsequent FOIL request until the petitioner paid the fee owed for his first FOIL request was not arbitrary or capricious (see New York State Dept of State, Comm on Open Govt. Advisory Opn. No. 9659).”
Based on the judicial precedent cited above, again, it is our view that the District is not required to honor a new FOIL request made by a person who has not paid the proper fee regarding an earlier request. Until the money due is paid, any new request may be rejected.
I hope that I have been of assistance.