By GIB SNYDER
OBSERVER City Editor
A report on fees the city of Dunkirk Police Department was charging for copies of accident and incident reports may have led to a change in those fees.
According to a change made on the department's website in its form downloaded for those copies, the fee was adjusted and is now in compliance with the state's FOIL fee schedule.
"It is the policy of the City of Dunkirk Police Department to provide requesting individuals with copies of accident and incident reports. Individuals wishing to receive a copy of an accident or incident report are requested to complete this form in order that their request may be properly processed. The completed form should be submitted to the Dunkirk Police Department. Your request should be as detailed as possible to ensure proper identification of the appropriate report. There is a $.25 per page fee for each copy requested. Within 5 business days you will be notified of approval and approximate time for your report to be available," the new form states.
Another form, Authorization for Release of Information, still has a $15 fee.
An individual filing this form is authorizing and requesting the release of any information the police department has on the individual that concerns the individual personally.
"There is a $15 fee for each copy requested. Requests will be processed within 10 business days. You may request expedited processing (2-3 days) for an additional $15," it states.
Police Chief David Ortolano made the changes - originally and recently - on the advice of two different city attorneys.
"The rates, structures and all of that was set in place a couple years ago by a prior city attorney," Ortolano explained. "When it was brought up, I got with City Attorney Ron Szot and he researched it. His recommendation was to change it. He recommended that this was the fee schedule, so that's what we did."
Szot said he was in contact with Chautauqua County attorneys and the collaborative effort lead to the change.
"My understanding is the county just recently was looking at this as well, independent of anything that was discussed in the north county or not, I don't know," Szot stated. "What the city was charging just happened to be the same price (as the State Police). The FOIL charge now is accurate.
"If you think of what FOIL is, it's a release or viewings of a record that's kept by the agency. If this record was kept, make a copy of it, a CD of it. What these background checks are is not just taking and making a copy of this arrest report, but actually generating a separate report."
Szot was referring to the Authorization for Release of Information form.
"I've talked to a couple different municipal attorneys who have a couple different opinions on it. ... If there's a more definitive direction on that we will make sure we change it. Right now my understanding is they are essentially creating something new. It's not just a computerization," he explained. "I think there are times when they even have to check records the city doesn't even keep. If you're arrested on a felony, those go to the county. The jurisdiction, the city in this case, is certifying you don't have a record in Dunkirk. You were arrested here but this court didn't handle it so they have to go to records in Mayville, that kind of thing."
Szot said a state statute prevails over any local laws.
"If it took (City Clerk Lacey Lawrence) two days to find one record or one piece of paper, we could only charge a quarter. That's why I want to see everything digitized and PDFed," he stated. "It just saves us time and it gets everybody an opportunity to get things quicker, hopefully. Except for this one recent blowup about this thing, I would have never given it a second thought.
"When you think about it, half the stuff is the way it is because that's the way it was and no one really wanted to change it. ... Twenty years later you're way wrong from the way it should be."
According to the memo Szot provided, "Charging more than $.25 per copy, without showing an appropriate need to pay for excess reproduction costs, is only permitted when 'a statute, an act of the State Legislature, so permits.' Therefore, even if the City had a local law or ordinance setting a rate, it would not appear to pass muster. (For example, NY Public Officers Law Section 66-a provides that the NYSP shall charge $15 for the search and copy of accident reports and photographs.)."
Szot also noted that there was some confusion until the state made a change.
"Public Officers Law Section 87(1)(b)(iii) had stated that an "agency" could charge up to $.25 unless a different fee was prescribed by law. However, in 1982, the State amended the Public Officers Law and replaced 'law' with 'statute,' which effectively eliminated the possibility of local municipalities crafting their own local laws that set charges at more than $.25 per page."
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