FOIL AO 19722
April 17, 2019
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.
I am writing in response to your request for an advisory opinion regarding the fees proposed to be charged for the reproduction of electronic records by the Kings County Clerk’s Office.
In response to your request for an electronic copy of the complete Kings County/Brooklyn “Filed Maps,” the County advised you that the records you seek are publicly available, however, it determined that it will charge you a fee of $0.25 per page for an electronic copy. The Office of Court Administration (OCA) provided guidance to the Kings County Clerk on this issue and stated:
“Contrary to your claim, FOIL’s ‘actual cost’ of reproduction concept simply does not apply to the County Clerk’s Office, much less does it support your conclusion that the fee should be zero dollars for ‘5 minutes’ of copying electronic records.”
You have questioned the appropriateness of the proposed fee. In our view, both the County and OCA are incorrect in their interpretation of the fee provisions of the Civil Practice Law and Rules (CPLR) relating to County Clerks.
By way of background, §87(1)(b)(iii) of the Freedom of Information Law (FOIL) requires that each agency subject to FOIL must establish rules and regulations which must include “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.”
As you are aware, §§8018 through 8021 of the CPLR require that county clerks charge certain fees in their capacities as clerks of court and other than as clerks of court. Since those fees are assessed pursuant to statutes other than FOIL, we believe that they may exceed those permitted under the FOIL. As stated in §8019, “The fees of a county clerk specified in this article shall supersede the fees allowed by any other statute for the same services....”
By means of example, subdivision (f) of §8019, entitled “Copies of records,” states in relevant part that:
“The following fees, up to a maximum of forty dollars per record shall be payable to a county clerk or register for copies of the records of the office except records filed under the uniform commercial code:
1. to prepare a copy of any paper or record on file in his office, except as otherwise provided, sixty-five cents per page with a minimum fee of one dollar thirty cents.” If a record subject to subdivision (f) is reproduced on paper, i.e., by means of a photocopy machine, it would be clear in our opinion that FOIL would not be applicable and that a county clerk could charge “sixty-five cents per page with a minimum fee of one dollar thirty cents....”
CPLR §8019(f)(5), however, states that the County Clerk may charge a fee to a requestor “to prepare a copy of any paper or record on file in the office in a medium other than paper, the actual cost of reproducing the record in accordance with paragraph (c) of subdivision one of section eighty-seven of the public officers law.” In other words, when the County Clerk provides records in a “medium other than paper,” as is contemplated in your request, the Clerk may only charge the “actual cost of reproducing the record” as described in §87(1)(c) of FOIL. If the records already exist in electronic format and it is only a matter of placing the electronic file onto an electronic storage device, in our view, the County would only be permitted to charge you for the actual cost of the electronic storage device (or, in the alternative, require that you provide your own device).
In an e-mail communication with Assistant Counsel for OCA, that agency asserted that the maps are only available for paper copy, not for electronic copy. The agency asserted that the County does not provide electronic copies of maps. I point out that §87(5)(a) of FOIL requires “[a]n agency shall provide records on the medium requested by a person, if the agency can reasonably make such copy or have such copy made by engaging an outside professional service.” It is my understanding, based on our conversations, that the County does have the ability to prepare an electronic copy of the historical maps you seek. If that is accurate, in our view, the County must provide the maps to you in electronic format and may only charge a fee consistent with CPLR §8019(f)(5) and FOIL §87(1)(c).
I hope this information proves useful.
cc: Shawn Kerby, Office of Court Administration
Eric M. Kornblau, Counsel to Kings County Clerk’s Office