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Friday, June 10, 2016

New York’s Freedom of Information Law does not permit the custodian of the records to routinely charge for employee time spent searching for documents responsive to a FOIL request


New York’s Freedom of Information Law does not permit the custodian of the records to routinely charge for employee time spent searching for documents responsive to a FOIL request
Ripp v Town of Oyster Bay, 2016 NY Slip Op 04226, Appellate Division, Second Department

In a CPLR Article 78 proceeding to compel the production of certain documents pursuant to the Freedom of Information Law (Public Officers Law Article 6) [FOIL], the Town of Oyster Bay [Town], appealed that part of the Supreme Court decision that barred the Town requiring the petitioner, Robert O. Ripp, to prepay certain estimated costs as a condition of producing the requested documents for inspection.

Ripp had requested that the Town make certain documents available for inspection pursuant to FOIL. The Town conditioned the disclosure of the documents upon Ripp prepaying $1,920 to cover the estimated costs associated with producing the documents.

The Appellate Division sustained the Supreme Court’s order explaining that:

1. FOIL requires state and municipal agencies to make available for public inspection and copying all records, subject to certain exemptions;

2. Where an agency conditions disclosure upon the prepayment of costs or refuses to disclose records except upon prepayment of costs, it has the burden of "articulating a particularized and specific justification" for the imposition of those fees;

3. The agency must demonstrate that the fees to be imposed are specifically authorized by the cost provisions of FOIL; and

4. The custodian of the records must meet this burden "in more than just a plausible fashion."

In this case the Appellate Division found that the Town had failed to satisfy these requirements, noting that the only evidence in the record justifying the imposition of costs was a letter to Ripp stating that it would take a Town employee a minimum of eight weeks, at $240 per week, to review 2,500-3,000 files to identify the records available for inspection.

While an agency may charge for employee time spent extracting or segregating data from an electronic database, the court distinguished electronic “records” from “hardcopy” records and explained that FOIL does not permit an agency to charge for employee time spent searching for paper documents.*

The Appellate Division opined that the Town had failed to demonstrate that the prepayment costs it demanded were properly based upon employee time related to retrieving electronic files, rather than a manual search of hard copies for which the Town's recoupment costs are limited to 25¢ per photocopy.**

Accordingly, said the court, the Supreme Court properly directed the Town to make the paper records or documents sought available for Ripp’s inspection without the prepayment of the estimated costs.

* Weslowski v Vanderhoef, 98 AD3d 1123, provides a comprehensive review of the elements involved in the custodian of the records lawfully requiring payments attributed to complying with a FOIL request.

**The person requesting the documents may avoid this $.25 per page charge by simply inspecting the documents "on site" rather than ordering photocopies of the documents of interest.

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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