FOIL AO 19750
August 2, 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.
The Committee on Open Government recently received a copy of a Freedom of Information Law (FOIL) appeal determination authored by you relating to the fees the Department of Transportation (DOT) charges for the reproduction of records.
As you know, Mr. Williamson (the applicant for records) contacted our office and expressed concern that DOT was proposing a $50.00 fee to provide a copy of a particular data set. In response to Mr. Williamson’s inquiry, I wrote the following:
“Section 89(3)(a) states: "When an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so."
If DOT maintains the records you seek and is able to extract the data from its database with reasonable efforts, it must do so and it would only be permitted to charge a fee as described in Section 87(1)(b)(iii) and 87(1)(c). In my opinion, it is unlikely that the $50 fee is permissible under the statute.”
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.” (emphasis is mine)
By telephone following my e-mail to Mr. Williamson, and now by appeal determination, you express the belief that State Finance Law §15 authorizes the DOT, via the promulgation of regulations, to establish fees higher than those authorized by FOIL. I disagree.
By way of background, §87(1)(b)(iii) of FOIL stated until October 15, 1982, that an agency could charge up to twenty-five cents per photocopy unless a different fee was prescribed by "law." Chapter 73 of the Laws of 1982 replaced the word "law" with the term "statute." As described in the Committee's fourth annual report to the Governor and the Legislature, which was submitted in December of 1981 and which recommended the amendment that is now law:
"The problem is that the term 'law' may include regulations, local laws, or ordinances, for example. As such, state agencies by means of regulation or municipalities by means of local law may and in some instances have established fees in excess of twenty-five cents per photocopy, thereby resulting in constructive denials of access. To remove this problem, the word 'law' should be replaced by 'statute', thereby enabling an agency to charge more than twenty-five cents only in situations in which an act of the State Legislature, a statute, so specifies."
As such, prior to October 15, 1982, a local law, an ordinance, or a regulation for instance, establishing a search fee or a fee in excess of twenty-five cents per photocopy or higher than the actual cost of reproduction was valid. However, under the amendment, only an act of the State Legislature, a statute, would in my view permit the assessment of a fee higher than twenty-five cents per photocopy, a fee that exceeds the actual cost of reproducing records that cannot be photocopied, or any other fee, such as a fee for search. In addition, it has been confirmed judicially that fees inconsistent with FOIL may be validly charged only when the authority to do so is conferred by a statute. In Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987), a fee in excess of twenty-five cents per photocopy for certain records was established by an ordinance, and the court found the ordinance to be invalid. Moreover, the Appellate Division, Second Department reached the same conclusion relative to a provision in a county code, finding that a fee established by local law that exceeded the fees permissible under FOIL was invalid. [Gandin, Schotsky & Rappaport v. Suffolk County, 226 AD 2d 339 (1996)].
State Finance Law §15 was enacted in 1940 (Chapter 593 of the Laws of 1940) and states, in part:
“The head of each state department shall adopt rules and regulations governing the printing and distribution of all blanks, reports, pamphlets and other documents printed by or under the direction and supervision of his department, or of any officer, board, division, bureau, commission or other state agency included within such department, and containing an itemized schedule of fees to be charged therefor. Such rules and regulations shall be submitted by such department head to the director of the budget and, upon his approval thereof, shall have the force and effect of law.”
As such, the fees that DOT proposes are prescribed by regulation, not by statute. A statute is defined as a “legislative act” being the result of the combined action of both the Legislature and the Governor on a bill (56 N.Y. Juris, § 1). While I agree that regulations have the “force and effect of law,” they are not “statutes.”
You opine in your appeal determination that “Public Officers Law §87(1)(b)(iii) notes there is an exception to the fees schedules ser forth for FOIL requests when a separate statutory authority exists allowing the imposition of a fee not listed in §87 of the Public Officers Law.” In my view, this is not an entirely accurate interpretation of FOIL. FOIL permits an agency to charge a fee in excess of those set forth in the law only “when a different fee is otherwise prescribed by statute.” While State Finance Law established, in 1940, the statutory authority for a state agency to promulgate a fee schedule via regulation, the statute, itself, does not prescribe the fee.
In an analogous situation, relating to an agency’s ability to deny access to records which “are specifically exempted from disclosure by state or federal statute” (§87(2)(a) of FOIL), the Appellate Division, Third Department offered the following:
It would therefore appear that this regulation [making all Parole Board records confidential], as applied to the minutes of Parole Board meetings, is invalid on two grounds. As shown above, the regulation makes all records private initially and is not limited solely to those categories of information specifically set forth or included by reasonable implication in the statutes. Furthermore, by making all records initially confidential in a broad and sweeping manner, the regulation violates the clear intention of the Freedom of Information Law (see Public Officers Law, § 85). It is established as a general proposition that a regulation cannot be inconsistent with a statutory scheme (see, e.g., Matter of Broadacres Skilled Nursing Facility v Ingraham, 51 AD2d 243, 245-246) and the statute involved here specifically states that exemptions can only be controlled by other statutes, not by regulations which go beyond the scope of specific statutory language (Public Officers Law, § 88, subd 7, par a). This conclusion is further reinforced by the general rule that public disclosure laws are to be liberally construed (Cuneo v Schlesinger, 484 F2d 1086, cert den sub nom Rosen v Vaughn, 415 U.S. 977; Matter of Burke v Yudelson, 81 Misc 2d 870) and that statutory exemption from disclosure must be narrowly construed to allow maximum access (Vaughn v Rosen, 484 F2d 820, cert den 415 U.S. 977; see Public Officers Law, § 85). (Zuckerman v. New York State Bd. of Parole, 53 A.D.2d 405, 407–08, 385 N.Y.S.2d 811 (1976)) (emphasis is mine)
Just as FOIL “states that exemptions can only be controlled by other statutes, not by regulations which go beyond the scope of specific statutory language,” it also states that higher fees can only be prescribed by statute.
Further, it is important to note that State Finance Law §15 was enacted over 30 years prior to the enactment of FOIL. While SFL §15 requires a State Agency to promulgate regulations relating to fees for “the printing and distribution of all blanks, pamphlets and other documents printed by or under the direction and supervision of his department,” POL §87(1)(b)(iii), requires that “[e]ach agency shall promulgate rules and regulations, in conformity with this article…pertaining to the availability of records and procedures to be followed, including, but not limited to… 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.”
In 1985, the Court of Appeals weighed in on an apparent conflict between rights of access conferred by General Municipal Law §51 (Chapter 29 of the Laws of 1909) and by FOIL. The Court held that “[t]o give effect to both statutes, the FOIL exemptions must be read as having engrafted, as a matter of public policy, certain limitations on the disclosure of otherwise accessible records.” Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 132, 480 N.E.2d 74, 75 (1985). It follows, therefore, that the limitations on the fees that an agency may charge for the reproduction of records established by FOIL “must be read as having engrafted, as a matter of public policy, certain limitations” on the authority of a State Agency to establish fees by SFL §15.
In short, while SFL §15 requires a State Agency to establish by regulation a fee schedule for “the printing and distribution of all blanks, pamphlets and other documents printed by or under the direction and supervision of his department,” in my opinion, those regulations must be consistent with the requirements of §87(1)(b) of FOIL and that fee schedule must not establish fees in excess of those permitted by FOIL.
I hope this information proves useful.