March 15, 1996



Mr. Philip King
Pouch No. 1
Woodbourne, NY 12788

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. King:

I have received your letter of February 22 in which you request an advisory opinion concerning the Freedom of Information Law.

You wrote that you are interested in obtaining "pictures" of the complainant introduced at your trial and shown to the jury. Further, if they are accessible, you asked whether you are entitled to duplicate photographs, opposed to photocopies, for you indicated that, having seen photocopies, "you just can't tell is what". You also sought my opinion concerning other records that you requested from the Office of the Queens County District Attorney.

In this regard, I offer the following comments.

First, based upon §86(4) of the Freedom of Information Law, photographs maintained by an agency in my view clearly constitute records subject to rights of access.

Further, §89(3) of the Freedom of Information Law states in part that, upon payment of the appropriate fee, an agency "shall provide a copy of such record." Further, the provision in the Law pertaining to fees, §87(1)(b)(iii), states that an agency's rules and regulations must include reference 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, except when a different fee is otherwise prescribed by statute."

As I interpret the language quoted above, unless a different statute authorizes other fees, the first clause provides that an agency may charge up to twenty-five cents per photocopy for records up to nine by fourteen inches. The next clause, which deals with the "actual cost of reproduction", pertains to "other" records, i.e., those records that cannot be duplicated by means of photocopying. In my view, if a photocopy of a photograph serves as an adequate reproduction of such a record, a photocopy would likely suffice to comply with the Law. However, if a photocopy does not serve to provide an accurate method of reproducing what appears on a photograph, as agency, in my view, would be obliged to "copy" the record, i.e., prepare a reprint of a photograph upon payment of the actual cost of reproduction.

It is noted that in a recent decision, it was stated that the Freedom of Information Law "no where suggests that an agency must provide reprints of photographs" [Adams v. Hirsch, 582 NYS 2d 724 (1992)]. However, in that case, the agency could not locate the photographs. In other contexts, it is clear that agencies have been required to produce records in the medium suggested when they have the ability to do so. For example, it has been found that an agency was required to supply data on a computer tape, rather than by means of computer printouts, when it had the capacity to do so and the applicant was willing to pay the actual cost of reproduction [see e.g., Brownstone Publishers, Inc. v. New York City Department of Buildings, 166 AD 2d 294 (1990)].

Second, with respect to your rights of access to the photographs and the other records to which you referred, it appears that they were introduced into evidence at your trial. If that is so, of likely relevance is a decision concerning a request for records maintained by the office of a district attorney that would ordinarily be exempted from disclosure under the Freedom of Information Law, but in which it was held that "once the statements have been used in open court, they have lost their cloak of confidentiality and are available for inspection by a member of the public" [see Moore v. Santucci, 151 AD 2d 677, 679 (1989)]. Based upon that decision, it appears that records introduced into evidence or disclosed during a public judicial proceeding should be available.

I note that, in the same decision, it was also found that:

"...if the petitioner or his attorney previously received a copy of the agency record pursuant to an alternative discovery device and currently possesses the copy, a court may uphold an agency's denial of the petitioner's request under the FOIL for a duplicate copy as academic. However, the burden of proof rests with the agency to demonstrate that the petitioner's specific requests are moot. The respondent's burden would be satisfied upon proof that a copy of the requested record was previously furnished to the petitioner or his counsel in the absence of any allegation, in evidentiary form, that the copy was no longer in existence. In the event the petitioner's request for a copy of a specific record is not moot, the agency must furnish another copy upon payment of the appropriate fee...unless the requested record falls squarely within the ambit of 1 of the 8 statutory exemptions" (id., 678).

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Records Access Officer