Revisions in FOIL law may increase cost to get government documents

People accustomed to paying 25 cents per page for documents requested through New York state’s Freed
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Categories: Schenectady County

People accustomed to paying 25 cents per page for documents requested through New York state’s Freedom of Information Law can now expect, in some instances, to also pay the hourly wage of the public employee who gathered those documents.

Several changes in the law were approved by Gov. David Paterson and took effect on Thursday.

Among the changes is a new provision related to fees for information held electronically that cannot simply be placed in a photo copier.

According to an outline of changes on the Web site of the state Department of State, many documents on a computer can be made available for the minor cost of a computer disk.

But that changes in situations where an agency determines at least two hours of an employee’s time is required to pull the information out of a computer.

“The legislation permits an agency to now charge a fee based on the cost of the storage medium used, as well [as] the hourly salary of the lowest-paid employee who has the skill needed to do so,” according to the Department of State.

Robert Freeman, director of the state’s Committee on Open Government, said he doesn’t believe the provision will provide agencies with a means to price people out of getting public information.

The state’s FOIL law applies to state agencies but also to school districts, municipal governments and public authorities.

Freeman said if people get a response to a FOIL request with what appears to be an unreasonable estimate of the cost, they can simply go to a neighboring agency and see how much it would cost there. That would provide a comparison to determine if they’re being treated fairly or not, Freeman said.

FOIL was drafted in the 1970s, Freeman said, and the changes were made to reflect advances in technology.

So the charge for reproducing information that’s kept on a computer, Freeman said, reflects the cost of programming activities that could be required to extract the data.

Freeman said technological advances have actually made it easier for people to access government information, in some cases for free.

If agencies can respond to a FOIL request by simply sending the information via e-mail, it doesn’t cost the applicant money, Freeman said.

“Our law was passed in the ’70s. We’ve evolved since then and I think information technology has become prevalent and useful,” Freeman said.

Though the change could be seen as a way to charge more money, it also prevents agencies from denying FOIL requests if their equipment is not capable of preparing a copy. Agencies faced with that situation are now charged with hiring a private professional to get the information out of the computer and pass that cost onto the person requesting the information.

“With advance knowledge of the amount of the fee that would be assessed, applicants in many situations may narrow the scope of their requests,” according to the Department of State Web site.

This provision also eliminates an agency’s ability to suggest they don’t have adequate staff to comply. An agency can’t deny a request if, in that situation, “an outside service can be retained to accommodate the applicant and if the applicant agrees to pay the actual cost of reproducing the records,” according to the Department of State.

Other provisions in the changed law, as outlined by the Department of State, include:

u Agencies now have to “provide records on the medium requested … if the agency can reasonably make such copy.” That means people can get their information on a computer disk, if possible, instead of paying for numerous pages of paper.

u The law in the past has pertained to “existing records,” but the new version makes it possible to request portions of records that are within a database if they can be “extracted or generated from existing records with reasonable effort.”

u The law makes it more difficult for entities to request information for the sole purpose of fundraising or selling people something. This gives agencies the ability to preclude the use of a list of people’s names and addresses if the list would be used to sell them something. Those requesting information that lists people’s contact information can now be asked to provide written certification the information won’t be used to solicit or raise money.

u An amendment to the law requires agencies subject to FOIL to consider people’s access to documents when they renew or enter into a contract for maintaining their information. The change doesn’t require agencies to modify their current systems. But when they get a new system or renew their contracts for information maintenance, they have to consider information access for the public.

u The law codifies the ability for people to get information on property assessments. According to the Department of State, a recent judicial decision appeared to limit disclosure of these records and the law makes it clear that property records are public information.

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