Here is what one resident with an email account can do.
In late August, the Town of Berne in Albany County put a new notice on its website. According to the notice, municipal records were not covered by the Freedom of Information Law. Anyone who wanted a town record was told whom to write to and that the request would cost $50, described as a FOIL search fee. Both parts of that were wrong, and within days the notice was gone. No lawsuit. No lawyer. No newspaper story. One email to the right office, forwarded to the right person.
This is why open-government advocacy matters, and why it works more often than people think. Most of it is not dramatic. It is someone who knows the law noticing that a town does not, and refusing to let it slide.
The someone in this case is Ken Guarino, NYCOG board member and treasurer, who lives in Berne. He read the notice, went to the FOIL regulations at 21 NYCRR Part 1401, and found no exemption for municipal records, because there isn’t one. He also knew that writing to the town on his own would not get far. “The town doesn’t listen to me at all,” he told the board at our September 3 meeting.
So on August 27 he sent a short email to the state Committee on Open Government with a screenshot of the notice and one question: did he miss something, or are municipal records excluded from FOIL?
The answer took a day
The next morning, August 28, Kristin Bergin, the Committee’s acting executive director and counsel, sent back two sentences:
The Freedom of Information Law governs access to all municipal records and the Law prohibits charging a search fee.
The information posted in the Town’s website does not reflect an accurate understanding of the Law or corresponding FOIL regulations.
That is the whole response. It is not a formal advisory opinion, and it did not need to be.
Ken forwarded it to the town supervisor. Two days later the notice was gone from the website.
What the law actually says
FOIL applies to every “agency” in New York, and Public Officers Law §86(3) defines that term to include any state or municipal department, board, bureau, division, commission, committee, public corporation, council, office or other governmental entity. A town is a municipal agency. Its records are covered.
On fees, the law is nearly as plain. Public Officers Law §87(1)(b)(iii) caps paper copies at 25 cents per page for photocopies up to 9 by 14 inches. For anything else, §87(1)(c) allows the actual cost of reproduction, and it spells out what can go into that number: the hourly salary of the lowest-paid employee with the skill to prepare the copy, the cost of the storage media, and the cost of an outside service if the agency needs one. Employee time can be charged only when preparing the copies takes at least two hours. That is how a large or complicated request can legitimately run up a bill. What the statute rules out, in so many words, is “search time or administrative costs.” There is no fee for looking, and no fee for inspecting a record in person. A flat $50 FOIL search fee to find out whether a record exists is not a permitted fee. It is a barrier.
The Committee on Open Government’s regulations, the same Part 1401 Ken checked, restate those rules for every records access officer in the state.
Why this is worth a post
Berne has about 2,700 residents. A notice like this on a small town’s website does real damage, because most people who read it will take it at face value. They will assume the town is right, decide $50 is not worth it, and never file the request. The record stays closed without anyone ever denying it.
What undid the notice was not a lawsuit or a newspaper story. It was one resident who knew where to look, asked the right office, and forwarded the answer to the person who could take the notice down. The Committee on Open Government exists for exactly this. Its staff answer questions from the public by email and phone, and a two-sentence reply from them carries weight with a town board that a resident’s email alone may not.
We do not know why the notice went up in the first place. It may have been a misunderstanding by whoever maintains the site, or it may have been an attempt to discourage requests. Either way, it came down because someone checked.
