FOIL AO 19739

Date:                       June 16, 2019
Subject:                   RE: This was the response to Jennifer Niznik's appeal to the denial of the information
Attachments:           F19631.pdf


Hi  ‐ ‐

Based on the information as you presented it, I offer the following comments.

First, FOIL applies to all government agency records, and §86(4) defines the term “record” to mean “any information kept, held, filed, produced or reproduced by, with or for an agency…in any physical form whatsoever…” Because that is so, the video footage, in my view, clearly constitutes a Village record subject to rights of access conferred.

Second, as you know, FOIL provides that all records are available, except those records or portions of records that fall within one or more of the grounds for denial of access appearing in §87(2). Although one of the exceptions deals with the authority to withhold to the extent that disclosure would result in “an unwarranted invasion of personal privacy” [§87(2)(b)], it is clear that Jennifer cannot invade her own privacy. Insofar as the footage identifies a public employee who was present at the scene in the performance of his official duties, it is likely that there would be no basis for withholding. It has been held in many instances that public employees enjoy less privacy than others, because those persons are required to be more accountable than others.

Third, when copies of records are requested, an agency may charge up to 25 cents per photocopy up to 9 by 14 inches, or the actual cost of reproduction of other records, e.g., those that are either larger than 9 by 14 or, more commonly today, those that are maintained electronically in some manner. If it takes less than two hours to prepare those “other” records, the fee would based on the cost of the storage device, such as a tape or disk. If it takes two hours or more to prepare the record, an agency may establish a fee based on the hourly salary of the lowest paid employee who has the ability to do so.  I note, too, that in a case involving body cam footage, it was held that an agency could not charge for the time needed to review and redact the footage.

Attached is an opinion that deals in part with dashcam footage. Please feel free to use this response and the attachment.