FOIL AO 19724                                                        April 23, 2019

VIA EMAIL

 

TO:                 

FROM:            Robert J. Freeman, Executive Director

CC:                  mark.scheer@niagara-gazette.com, matt.wintehalter@niagara-gazette.com, dcoder@lockportschool.net,  mbardley@lockportscholls.net, afreedman@hodgsonruss.com

RE:                  Advisory Opinion

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 have received your letter and the materials relating to it concerning a request made pursuant to the Freedom of Information Law (FOIL) directed to the Lockport City School District.  The focus of the materials involves the fee sought to be charged by the District for copies of records.

            In this regard, although the District opted to waive an element of the fee sought to be charged, I offer the following remarks concerning its interpretation of the law.

 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 first clause of the foregoing pertains to photocopies up to nine by fourteen inches, and the only fee that may be charged for copies of those records is a maximum of twenty-five cents per photocopy.  Additionally, 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 any other record, such as those other than paper records or those in excess of nine by fourteen inches. That provision states 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.”

In sum, when more than two hours are needed to prepare 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.” Insofar as a fee does not involve the “preparation” of records, but rather the time needed to review the records or administrative costs, the fee would exceed that permitted by FOIL. As determined in 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).”

Lastly, since you requested a waiver of fees, I point out that nothing in the New York FOIL requires or refers to fee waivers, irrespective of the nature of a request or the intended use of records.

In an effort to encourage knowledge of and compliance with law, a copy of this response will be sent to the District and representatives of your employer.

I hope that I have been of assistance.