Court Remands Issue of Costs of FOIL Request For Trial

The Appellate Division held that a trial is required to determine whether Rockland County properly determined the costs that must be prepaid before it will comply with a FOIL request. In Matter of Weslowski v Vanderhoef, the Second Department concluded there were triable issues of fact as to whether the County had used the proper criteria in requiring the prepayment of over $ 156,000.00 before complying with a large FOIL request.

The Court reviewed the statutory provisions for recovery of the costs of complying with a FOIL request:

"Public Officers Law § 87 sets limits on the costs which an agency may charge those who have requested records: "fees for copies of records . . . 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" (Public Officers Law § 87[1][b][iii]). Section 87(1)(c) of the Public Officers Law defines the term "actual cost." Under that provision, an agency may only recover the "actual cost" of reproducing the record, including "an amount equal to the hourly salary attributed to the lowest paid agency employee who has the necessary skill required to prepare a copy of the requested record" (Public Officers Law § 87[1][c][i]). However, the statute provides that "preparing a copy shall not include search time or administrative costs, and no fee shall be charged unless at least two hours of agency employee time is needed to prepare a copy of the record requested" (Public Officers Law § 87[1][c][iv])."

The Court then found that the County Records Access Appeals Officer applied the wrong criteria in merely concluding that he should give the County Records Access Officer "the benefit of the doubt" as to his calculation of the chargeable costs for document recovery. Noting, based upon e-mails from the County, that while it appeared some of the costs were properly recovered, remand and immediate trial are required because:

"the agency must demonstrate that the fees to be imposed are authorized by the cost provisions of FOIL (see Public Officers Law § 87[1][c]). If an agency imposes fees which are not authorized by FOIL, the determination requiring the prepayment of such fees must be deemed to have been "affected by an error of law or . . . arbitrary and capricious" (CPLR 7803[3]). ...The Access Officer's e-mails indicate that the petitioner may have been improperly charged for the time it would take County employees to search for paper documents, as those e-mails make reference to time spent retrieving "32,400 pages that would need to be located in the Archives," the retrieval of "files [that] would have to be located," "a manual search of numerous files at the Department of Personnel," and the retrieval of "the hard copy of each employee packet." The Access Officer's e-mails also indicated that, even where electronic copies were maintained, it would be necessary to check the accuracy of those copies by comparing them with hard copies and, thus, the County charged the petitioner for time that employees would spend locating those paper documents. The Access Officer's e-mails, therefore, revealed the existence of a triable issue of fact as to whether and to what extent the County sought to impose fees associated with the time its employees would spend searching for paper documents (cf. Public Officers Law § 87[1][c][iv])."

-Steven Silverberg