July 17, 1995



Ms. Edna Braham
2650 East 14th Street
Brooklyn, NY 11235

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.

Dear Ms. Braham:

I have received your letter of July 8. As I understand the matter, you are involved in a proceeding in which the court has permitted you to plead your case in forma pauperis. Having requested records relating to the case from the Department of Civil Service under the Freedom of Information Law, you asked that the Records Access Officer waive the fees for copying. You sought my views on the matter.

In this regard, I offer the following comments.

First, as stated by the Court of Appeals in a case involving a request made under the Freedom of Information Law by a person involved in litigation against an agency: "Access to records of a government agency under the Freedom of Information Law (FOIL) (Public Officers Law, Article 6) is not affected by the fact that there is pending or potential litigation between the person making the request and the agency" [Farbman v. NYC Health and Hospitals Corporation, 62 NY 2d 75, 78 (1984)]. Similarly, in an earlier decision, the Court of Appeals determined that "the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced...nor restricted...because he is also a litigant or potential litigant" [Matter of John P. v. Whalen, 54 NY 2d 89, 99 (1980)]. Therefore, when you seek records under the Freedom of Information Law, I believe that an agency can treat you in the same manner as any other member of the public who seeks records under that statute, despite your status as a litigant.

Second, under §87(1)(b)(iii) of the Freedom of Information Law, an agency may charge up to twenty-five cents per photocopy. I point out that there is nothing in that statute pertains to the waiver of fees. Further, in a decision involving a request for a waiver of fees by an inmate who sought records from an office of a district attorney, it was held that an agency may assess a fee in accordance with the Freedom of Information Law, notwithstanding the inmate's status as an indigent person [Whitehead v. Morgenthau, 552 NYS 2d 518 (1990)]. Therefore, irrespective of one's status, i.e., as a litigant or a poor person, I believe that an agency is authorized by the Freedom of Information Law to charge for photocopying in accordance with its rules promulgated under §87(1)(b)(iii) of that statute.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Susan Mayer, Records Access Officer