Lawyer Challenges Commissioner on right to photograph documents

Attorney Peter A. Reese proves the camera is mightier than the keyboard!

 

Prominent local attorney – and election law specialist - Peter A. Reese - went into the Niagara County Board of Elections to look at the nominating petitions filed by two candidates for the city Council, Alicia Liable and Ezra Scott.

Reese said he had information that suggested that the petitions may have been filed without cover pages, a condition that might render them invalid.

He carried with him a small black nylon pouch, which contained a Canon EOS single lens reflex camera. It was his intention, he said, to photograph the documents, which would prove one way or the other whether they had been filed correctly.

Democratic Elections Commissioner Lora Allen told Reese he could not photograph the documents, but she’d be willing to photocopy any pages he wanted to take with him at 25 cents per copy.

Reese said, “I don’t have 25 cents but I do have a camera.”

Allen adamantly refused to allow him to use his camera.

Republican deputy commissioner Mike Carney was there and he seconded Allen’s rule.

Reese then asked to see a written policy on the prohibition of a citizen using a personal camera to photograph public documents, arguing that the policy is in contravention to New York State law.

“Can an administrative body make up their own policy in contravention to state law?” Reese asked. “If so they could make up a policy that I have to walk in on my hands and paint my face blue.”

Reese declined to pay for copies and Allen asked him not to even take his camera out of its bag.

Reese in furtherance of his claim that there is no prohibition against taking pictures of public documents legally available to the public under the Freedom of Information Law told Allen that Robert Freeman, executive director of the New York State Committee on Open Government since 1976, had written in 2007  – in what is an advisory opinion - that anyone can duplicate any public document in New York State, so long as the duplication method does not destroy the document.

Freeman, Reese pointed out to the officials at the Niagara County Board of Elections, wrote “(T)here is no basis for precluding you from copying records through the use of your own camera or taking notes. Section 87(2) of the Freedom of Information Law specifies that accessible records must be made available for inspection and copying. I note, too, that §§87(1)(b)(iii) and 89(3) indicate that the only fee that an agency can charge involves its reproduction of records at the request of an applicant. Further, the regulations promulgated by the Committee on Open Government, which have the force and effect of law (21 NYCRR Part 1401), specify that no fee may be charged for the inspection of records.

“In short, there is no prohibition concerning the ability to copy the contents of records by hand. Further, your use of a camera, due to its size and independent power source, would not involve any use of agency resources or disruption of its activities different from inspection of records.

“In good faith, I note that it has been held that a rule prohibiting the use of one's own photocopier has been found to be valid and reasonable when such use would cause disruption [see Murtha v. Leonard, 210 AD2d 411 (1994)]. However, the use of a camera is different, for there would be no use of the agency's space or electricity, and there would be no distinction in terms of the agency's efforts in retrieving the records between the more traditional inspection of records and the use of your camera. In short, I believe that a prohibition of the use of your camera would be unreasonable and inconsistent with law.”

When contacted by the Niagara Falls Reporter, Allen confirmed that Reese and therefore the public was not permitted to photograph documents but allowed to buy them from the county until such times as she could verify that it is permitted.

 “I don’t know,” Allen said. “I have to check with the county attorney. I never had anybody come in and ask to take a picture of documents. When I don’t know, I check. Let me tell you what I said ‘I check’. I’m old enough to know enough to check.”

Allen did check and soon afterward wrote to Reese:  “Good Afternoon, I checked and found out you can take a picture. Would have called but can’t find your phone number.”

Reese rebutted, “BTW, my phone number is on my FOIL request.” 

By the way, Reese determined that Scott and Laible’s petitions were apparently valid.