Via Email

From:                      Freeman, Robert J (DOS)
Sent:                        Monday, June 10, 2019 12:32 PM
Subject:                   RE: Re: Your Advisory Opinion Challenged by the Town of Hempstead

Hi ‐

It has been very busy, but I apologize for not getting back to you.

To reiterate comments made in an advisory opinion addressed to you on October 18 of last year, f a record exists, it is subject to FOIL, and FOIL provides the right to inspect and copy. Additionally, as you know, an agency is required to make a copy of a record if the person seeking a copy is willing to pay the proper fee. As advised in the earlier opinion, unless a statute other than FOIL authorizes an agency to charge a different fee, the maximum fee that an agency may charge is twenty‐five cents per photocopy not in excess if 9 by 14 inches [87(1)(b)(iii)]. Further, FOIL indicates that person in receipt of a copy of record may ask that the agency certify to the correctness of the copy [§89(3)(a)]. The certification does not involve the accuracy of the content of a record, but rather an assertion that a copy furnished is a true copy of the record maintained by the agency. The regulations promulgated by the Committee on Open Government, which have the force and effect of law, specify that no fee may be charged for the certification that a record is a true copy [21 NYCRR §1401.8(a)(4)].

If an agency performs a service that exceeds its responsibilities imposed by FOIL, it would not be limited to the fee of twenty‐five cents per photocopy. You indicated that “The only way to obtain a certified copy with a raised stamp, and the signature…” involves a payment of twenty‐five dollars. There is no requirement in FOIL that an agency seal, emboss or include a signature on a record. If a person seeks a certified copy with the “raised stamp” and a signature, the fee would be based on the service that involves an action above and beyond the requirements imposed by FOIL. In that situation, the agency may establish a reasonable fee that exceeds the fee for copies imposed by FOIL.

If a person requests a photocopy of an existing record and does not ask that the record be certified in the manner described in the preceding paragraph, I believe that the fee would be limited to twenty‐five cents.

I hope that I have been assistance. Please feel free to share this response as you see fit. Bob Freeman