In this proceeding pursuant to Article 78 of the Civil Practice Law and Rules petitioner seeks a judgment:

Directing respondent Edgemont Union Free School District (the "School District") to provide copies of all records requested in his FOIL request of January 31, 2006 (the "First FOIL Request") at the lowest fee collected by the School Dsitrict on FOIL requests during the period between the enactment of FOIL until the present;

Directing the School District to eliminate extraneous, irrelevant and superfluous documents from its response to petitioner's First FOIL request; and

Directing the School District to comply with petitioner's FOIL request of June 8,2006 (the "Second FOIL Request") wherein he requested a copy of each FOIL application filed with the School District since the enactment of its FOIL rules and regulations, such copies to be provided at the lowest fee collected by the School District on FOIL requests during the period between the enactment of FOIL and the present.

As a resident of the Edgemont School District and apparently concerned with the District's [*2]"fraud-prevention" efforts, by letter dated January 31, 2006, petitioner made a request of the School District pursuant to the Freedom of Information Law ("FOIL"). The request specified 60 categories of financial records which spanned the period from January 1, 2001 to December 31, 2003.^[FN1] In the letter, petitioner stated: "Naturally, I and my fellow residents involved in this effort will be responsible for any and all costs reasonably associated with this effort."

By letter dated February 8, 2006, respondent Shirken, in her capacity as the School District's Records Access Officer, provided a written response. Requests numbered 41 and 42 were denied on the basis that they called for a narrative response and not for records. The 58 other requests were granted. Her reply also advised that some of the records which had been requested would have to be redacted to delete personal information such has home addresses and Social Security numbers (see Beyah v Goord, 309 AD2d 1049, 1050 [3d Dept 2003]). The letter closed with the following:

"When the records have been assembled and boxed up, we will, as you ave suggested, have them delivered to an outside contractor for duplication at your expense. I encourage you to confer with Mr. Kehl [Respondents' counsel] for the for the purpose of recommending a duplicating contractor for this purpose. We will require that it be an entity with experience and established reputation in handling bulk duplicating projects efficiently and without damage or disarrangement to the original materials being copied .... We will also require that you make appropriate advance arrangements to ensure payment, as you will, I trust, understand that we cannot permit a situation to develop in which public records might become subject to a contractor's retaining lien for unpaid services.

"To the extent that access to any record has been denied, you may appeal such denial in writing within thirty days after your receipt of this letter. Your appeal should be addressed to Ms. Nancy L. Taddiken, Superintendent of Schools, at the above address."

Petitioner did not appeal this determination.

By letter dated February 15, 2006, petitioner responded in part;

"In the penultimate paragraph of your letter [of February 8, 2006], you make a number of requests, or some may reasonably conclude, demands, about how, and by whom the records will be copied. One of the reasons that I asked that communications be routed through Mr. Kehl is to avoid any unnecessary confrontational episodes during this process, which I anticipate will take a number of years. As far as what you 'will require,' we will comply with what the law requires, not what you and your colleagues require. We have every intention of using professional copying services equipped to adequately, professionally, and efficiently handle this responsibility. I suggested, in the Request, that Mr. Kehl and I agree on such a service. I again reiterate that suggestion, notwithstanding your 'requirements.'

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"As far as ensuring that proper payment arrangements are made we will comply with your requirement that adequate payment arrangements are made. We are confident that, at the conclusion of this matter, we will ultimately be reimbursed by School District funds."

By April 3, 2006, respondents had identified and assembled 48 boxes of original records for copying as well as having already copied several thousand pages of additional material which needed to be copied so that the material could be returned to working files or redacted. The parties agreed that they would use an outside copying service and anticipated having to look to Manhattan in order to find a facility large enough to properly handle the job. It was also agreed, at petitioner's request, that he could inspect the records before they were sent out for copying in order to insure that he would not have to pay for the duplication of non-responsive material. Rather than make this inspection, however, by letter dated April 7, 2006, petitioner accused respondents of having created a situation "rife with bribes and kickbacks;" that he was certain that respondents had already altered or destroyed certain of the requested records; that counsel was operating under a conflict of interest in that he was responsible as counsel for respondents' malfeasance; and that he was therefore demanding that the records be sent to a copy service designated by him.

By letter dated April 10, 2006, respondents through counsel informed petitioner that he would be billed $0.25 per page for the records that had already been copied; that the balance of the requested records would be copied by a duplicating service of the School District's choice; that petitioner could inspect the records before they were sent out for copying but they would not be sent out at all unless and until petitioner paid for the copies that had already been made and provided suitable security for payment for the copies to be made. By letter dated April 12, 2006, petitioner was informed that the charges for the copies already made was $4,666.25.

On April 26, May 10, May 17, May 24 and June 1, 2006, petitioner made five two-hour visits to the School District's office where, with an employee of the School District present, he reviewed the records. No objection was then made that the records were non-responsive, nor did petitioner pay for the copies already made.

Rather, by letter dated June 8, 2006, petitioner made a second FOIL request, this time seeking a copy of each FOIL application filled with the School District since the enactment of its FOIL rules and regulations.^[FN2] By letter dated June 12, 2006, Shirken granted the request on the condition that the $4,666.25 still outstanding for the copies made pursuant to petitioner's first FOIL request be paid. The letter concluded with the following: 'To the extent that access to any record has been denied, you may appeal such denial in writing within thirty days after your receipt of this letter. Your appeal should be addressed to Ms. Nancy L. Taddiken, Superintendent of Schools, at the above address." By letter dated June 17,2006, petitioner appealed this determination. By letter dated June 29, 2006, the Superintendent affirmed Shirken's June 12, 2006 determination. This article 78 proceeding followed. [*4]

Petitioner's first request for relief seeks an order directing the School District to provide copies of the records requested in his FOIL request of January 31, 2006 at the lowest fee collected by the School District on FOIL requests during the period between the enactment of FOIL and the present. As a preliminary matter, respondents move to dismiss this claim on the basis that petitioner bas not exhausted his administrative remedies.

Public Offices Law § 89(4)(b) provides:

"[A] person denied access to a record in an appeal determination under the provisions of paragraph (a) of this subdivision may bring a proceeding for review of such denial pursuant to article seventy-eight of the civil practice law and rules."

Respondents contend that petitioner having failed to appeal Shirken's determination of February 8, 2006, petitioner has failed to exhaust his administrative remedies thereby precluding article 78 relief.

While it is true that petitioner did not appeal the February 8 determination and that determination provided that petitioner would have to make appropriate advance arrangements to ensure payment for the copies, that is not the determination which petitioner is challenging. What he is challenging is the determination that he must pay $0.25 per page. That determination was not made until April 2006. Petitioner's failure to appeal the February 8 determination therefore does not preclude article 78 relief with respect to this issue (Pennington v Clark, 307 AD2d 756 [4th Dept 2003]). Moreover, the April 10, 2006 letter which advised petitioner of the price per page he was to be charged failed to also advise of the availability of an administrative appeal. Having failed to do so, respondents cannot now argue that petitioner failed to exhaust his administrative remedies with respect to this issue by not appealing (Matter of Barratt v Morganthou, 74 NY2d 907, 909 [1989]). Moreover, the foregoing is true, notwithstanding that the petitioner may have been aware of the availability of such an administrative review by virtue of respondent's letter of February 8 (Orange County Pub. v Kiryas Joel Union Free School Dist., 282 AD2d 604,606 [2d Dept 2001]). Respondents' motion to dismiss this claim on exhaustion grounds is therefore denied.^[FN3]

With respect to the merits, petitioner reiterates that he has offered to pay for the entire cost of the copying. The gravamen of his claim is that inasmuch as the photocopying service he regularly employs would have charged only $0.15 per page, respondents' unilateral decision to use a service of their own choosing at a cost of $0.25 per page is arbitrary and capricious.

Public Officers Law § 87(l)(b)(iii) authorizes an entity subject to FOIL to charge up to $0.25 per page for copies of records (see also 21 NYCRR 1401.8[c] [l]). Moreover, once an agency has determined the number of copies requested, it may require that the fee therefor be paid prior to the reproduction of the records (Committee on Open Government FOIL-AO-4076; 92 NY Jur 2d [*5]§ 57) and there is no authority for the proposition that the individual who submitted the FOIL request has any right or say in how or by whom the copies shall be made. Furthermore, even if there were, respondents' decision to send the records to an independent copying service t a statutorily authorized price is more than reasonable given the alternative: releasing these original School District records to a copying service where petitioner would have had unsupervised access to them. Based thereon, petitioner's first request for relief is denied.

In his second request for relief, petitioner seeks an order directing the School District to eliminate extraneous, irrelevant and superfluous documents from the District's response to his First FOIL Request. This smacks of bad faith. First, petitioner cites no authority for this proposition. Moreover, it is undisputed that petitioner was given more than an ample opportunity to review the literally hundreds of thousands of pages of records which he requested - and which required over 177 hours to collect, copy and redact at an estimated cost in lost staff time to the School District of over $14,500 - in order to cull out those records which he did not want copied. He declined to do so, and in so doing manufactured and perpetuated an issue that could have and should have been resolved then. The second request for relief is denied.

In his third request, petitioner seeks an order directing the School District to comply with his Second FOIL Request and to provide such copies at the lowest fee collected by the School District on FOIL requests from the enactment of FOIL to the present. As indicated above, this request was granted on the condition that petitioner first pay the $4,666.25 outstanding for the copies made with respect to petitioner's First FOIL Request.

The Committee on Open Government, the administrative agency charged with the interpretation of the FOIL statute, has issued the following advisory Opinion:

"If an agency has prepared copies of records in good faith and the applicant fails or refuses to pay the fee, I do not believe that the agency would be required to make available those copies that have been prepared. In my view, it follows that an agency should not be required to honor ensuing requests until the applicant has fulfilled his or her responsibility by tendering the fee for copies previously made."

(Committee on Open Government FOIL Opinion dated August 27, 1996 [Beverly L. Ouderkirk]). Again, petitioner has submitted no authority to the contrary. Thus, respondents' decision with respect to petitioner's Second FOIL Request was neither arbitrary nor capricious but reasonable and in accordance with the law. Based thereon, the third request for relief is denied and the petition is dismissed.^[FN4]

In its cross-motion, respondents' assert that this proceeding is frivolous and was filed in bad faith and seeks that sanctions be imposed.

Pursuant to 22 NYCRR 130-1.1, the Court in its discretion may award to any party in any civil [*6]action or proceeding costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct Frivolous conduct includes the filing of a proceeding that is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law.

For the reasons stated above, the Court finds this proceeding to be frivolous. Each of respondents' decisions challenged in this proceeding was supported by statute and administrative rulings and petitioner cited no authority to the contrary. Accordingly, in addition to statutory costs to be taxed by the Clerk of the Court (CPLR 8201; City of Buffalo v George Irish Paper Co., [4th Dept 1969]; affd without opn 26 NY2d 869 [1970]), the School District is awarded costs to be paid by petitioner for the actual expenses reasonably incurred and reasonable attorney's fees incurred in defending this proceeding. Respondents' counsel shall submit an affidavit of such expenses and attorney's fees on notice to petitioner to the Court by November 1, 2006. This constitutes the decision and order of this Court.

The Court considered the following papers in connection with this application: (1) Notice of Amended Petition and Amended Petition dated July 8, 2006 with exhibits attached; (2) Verified Reply dated July 23, 2006 with exhibits attached; (3) Respondents' Notice of Motion dated July 24, 2006 together with Affidavits and exhibits attached; (4) Respondents' Memorandum of Law; (5) Petitioner's Memorandum of Law; and (6) Reply Affidavit of Sheila Y. Samuels.

Dated: White Plains, New York September 26, 2006

Hon. Gerald E. Loehr

Acting J.S.C.