Papers weighing legal options after Wydysh denies FOIL appeal

Yahoo

17-04-2025

The Niagara Gazette and the Lockport Union-Sun & Journal are weighing their legal options in light of Niagara County's continued insistence that the news outlets pay costs associated with scanning, redacting and copying public employee timesheets requested in electronic form as part of a Freedom of Information Law request filed in February.
In a letter dated April 10, Niagara County Legislature Chair Rebecca Wydysh, R-Lewiston, denied the newspapers' appeal of the county's FOIL request response dated March 14.
In the county's response, human resources director Peter Lopes identified 1,129 pages as 'potentially responsive' to the newspapers' request for timesheets submitted by attorneys working for the public defender's office between Jan. 1, 2023 and Feb. 10, 2025. In his letter, Lopes indicated that the county could make the documents available at a cost of $356.83. Lopes also proposed a less expensive option, estimated at $282.25, that would allow a reporter to conduct an in-person inspection of physical copies of redacted timesheets. The second option included a requirement that the reporter be accompanied by an assigned county employee, at the newspapers' cost, during the in-person inspection.
'An employee will sit with you while you inspect the records,' Lopes wrote. 'If time exceeds 120 minutes, you will be charged for that employee's time at their hourly rate.'
In an appeal sent to Wydysh on behalf of the newspapers, attorney Michael Higgins from the law firm Ernstrom & Dreste in Rochester argued that the county has no legal right under state law to charge by the page for copies of documents requested in electronic form. He also suggested the county's 'purported inability to scan documents without making physical copies' stretched 'the bounds of credulity.'
Higgins' appeal also asserted that the county's attempt to charge fees for administrative time to prepare photocopies of records is prohibited under state law and that it is 'improper' to charge the newspapers to allow a reporter to inspect records and to have those records redacted.
'Niagara County's attempts to charge for prohibited items and to unnecessarily copy documents to induce a charge is a transparent attempt to frustrate (the newspapers') FOIL request and avoid its obligations under the Freedom of Information Law,' Higgins wrote.
In her response, Wydysh restated the county's position that it is necessary to make physical copies of the requested documents so they can be redacted and scanned because some of the attorney timesheets 'may reflect medical or sick leave that is protected under HIPAA and exempt from FOIL disclosure.'
In addition, Wydysh argued, as Lopes did before her, that based on the volume of records, the human resources department would have to attach each pay period to a separate email, which would require staff time that the county would need to be reimbursed by the newspapers.
'Public Officer's Law requires an agency to send records electronically so long as the effort to effectuate that does not exceed the effort necessary for an alternative method of responding,' Wydysh wrote. 'Because of the necessity of reviewing the timesheets for compliance with HIPAA, and redacting portions of records that contain protected information, before scanning, it would be more labor intensive to scan the timesheets. In that circumstance, an agency is not required to provide the records electronically.'
Wydysh, citing a section of New York's Public Officer's Law, argues that the county is permitted to 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 fulfill the request. Wydysh noted that the county advised the newspapers that the rate in this case would be $40.17 per hour.
As to the in-person inspection option, Wydysh indicates that the county would make available copies of the timesheets at a cost of 25 cents per page but would not allow a reporter to take pictures of the records. She also noted that it is the county's position that a staff member would need to sit in on the records inspection and that the newspapers would be charged 'any time over two hours.'
'The human resources department was still willing to satisfy your client's preference to receive records electronically, but your client would be charged for the time associated with copying, reviewing, redacting, scanning in the records and attaching,' Wydysh wrote in her letter denying the newspapers' appeal.
The newspapers can file an Article 78 proceeding in court to challenge Wydysh's denial of their appeal to the county's initial FOIL response.