February 13, 1996



Mr. Anthony Logallo
Great Meadow Correctional Facility
P.O. Box 51
Comstock, NY 12821

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 Mr. Logallo:

I have received your letter of January 19 in which you raised a variety of questions regarding "fee waiver standards." In this regard, there is no decision of which I am aware rendered in New York in which a court has held that an indigent person may obtain a fee waiver in conjunction with a request for records under the Freedom of Information Law. There is, however, a decision in which the court held to the contrary, that an agency could charge its established fees even though the applicant was an indigent inmate [see Whitehead v. Morgenthau, 552 NYS 2d 518 (1990)].

You asked what the opinion of the Committee is regarding fee waivers for indigent requesters, and, in this regard, the Committee has not taken a position on that particular issue. However, since its creation in 1974, the Committee had advised that records accessible under the Freedom of Information Law should be made equally available to any person, without regard to one's status or interest, and the courts have adopted a similar position [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976) and M. Farbman & Sons v. New York City Health and Hosps. Corp., 62 NY 2d 75 (1984)]. To the best of my knowledge, the State Legislature has never considered the issue and no bill has been introduced that would authorize fee waivers based upon indigency.

As you requested, enclosed are copies of the Freedom of Information Law and the Committee's 1994 and 1995 annual reports to the Legislature. The reports include recommendations for legislation to amend the Freedom of Information Law relative to fees, and those recommendations have in the past been introduced in the State Legislature. Also enclosed are copies of opinions rendered by this office on the subject, including an opinion referenced in the Whitehead decision.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director