One way government boards deny the public access to documents is by ignoring the provisions of the Freedom of Information Law, such as by significantly delaying the release of information.

Another way is by charging exorbitant fees for gathering and printing records for release.

Often the price tag is enough to cause citizens to withdraw their requests for information because they can’t afford to pay for the copies.

Well, a state-level appeals court just made the release of information potentially more expensive and restrictive by going back on legal precedent regarding how government boards may justify the fees they charge for records.

According to a strongly worded rebuke issued by the state Committee on Open Government, the Appellate Division, Fourth Department, ruling in the case of Aron Law PLLC v. City of Rochester represents a “significant departure” from how boards have traditionally been allowed to set fees.

The Freedom of Information Law allows boards to charge citizens “an amount equal to the hourly salary attributed to the lowest paid employee who has the necessary skill required to prepare a copy of the requested record” beyond two hours of the employee’s time.

The key word in that sentence is “prepare.”

Under the latest ruling issued in July, the court appears to allow government boards the right to charge for the time spent in the “review of voluminous records.”

The key word in that sentence is “review.”

Preparing records and reviewing records aren’t the same thing. Our tax dollars already cover the government’s cost of reviewing FOIL requests. We’re not supposed to pay extra beyond the actual cost of preparing records.

In its response to the decision, the Committee on Open Government cited several precedents that say the exact opposite of the most recent ruling.

One is the 2012 case of Weslowski v. Vanderhoef, in which the court ruled that “the Freedom of Information Law (FOIL) does not permit an agency to charge for employee time spent searching for paper documents … given the statutory provision that ‘preparing a copy shall not include search time or administrative costs.’ “

Another case cited by the committee was the 2020 case of Forsyth v. City of Rochester, in which the court found that despite a claim of significant resources required to respond to request, “”respondents may not charge petitioner a fee for the costs associated with their review” of records sought.

If records officers actually start charging for the time they spend reviewing volumes of records and redacting information, on top of the actual cost of preparing documents for release, the cost to citizens could become astronomical.

As a result, fewer citizens will be able to afford to obtain records of which they are legally entitled.

This court decision is a setback for your right to know.

Credit the Committee on Open Government for taking the unusual step of alerting the public to this change in interpretation and for calling out the court for its clearly anti-citizen decision.