Thursday, October 21, 2010

NM FOG looking for fair pricing

Unscrupulous Custodians of Public Records use weakness in the New Mexico Inspection of Public Records Act, to gouge record seekers with unjustifiable costs, as a means to discourage requests for public records.

The NM FOG has published a press release illuminating their effort to end the practice.

FOG Executive Director Sarah Welsh writes;

“We’ve seen an uptick in complaints regarding excessive charges for electronic copies, particularly at the local level,” New Mexico Foundation for Open Government Executive Director Sarah Welsh said. “These include big bills to receive routine documents as e-mail attachments, and big bills for the privilege of making your own copies with a scanner or digital camera. Whatever the situation, unreasonable copy fees violate open-government laws and strongly discourage public access to information.”

Under state law, every person has the right to inspect public records for free. If a person wants copies, records custodians may charge “reasonable fees” not exceeding $1 per page for legal-size or smaller paper.

The law doesn’t explicitly address e-mailed documents or documents burned onto digital media like CDs and DVDs. However, the law’s “reasonable fee” provision has long been interpreted as a mechanism for recovering actual copying costs. New Mexico Attorney General Gary King’s office, which conducts sunshine-law training seminars throughout the state, routinely counsels public agencies to determine and pass along the actual cost of copying public records – regardless of their form or format.

In the case of an e-mailed document, that might include any staff time needed to scan, attach and send the document. If the agency provides the document on a CD, the cost of the blank CD could be added to any staff copying time. When a requester brings his own equipment to make a scanned or photographed copy, the agency pays nothing and so should charge nothing for the copies.

“Documents are evolving, but the principle remains the same,” Welsh said. “The public has the right to inspect public records and copy them for a reasonable fee. If it takes a public employee 30 seconds to attach a document to an e-mail, the cost to the agency is virtually nothing. And that’s how much it should cost the requester.”

Welsh said agencies are often relying on old policies that were enacted to deal with paper copies, and paper copies alone.

“I would encourage any records custodian or government attorney who is unsure of how to deal with electronic copies to consult with the Attorney General’s office,” Welsh said. “There is usually a reasonable way forward that works for everyone.”

Welsh said copy charges have long been an issue for open-government advocates and a key part of the effort to ensure freedom of information.

“There are already a host of practical barriers to obtaining public information,” Welsh said. “As a citizen, I have to know what I’m looking for and who’s holding it, and I have to take the time and effort to request it. Sometimes I’ll need to study the law and argue my case for weeks or months on end. If I’m successful, copying charges often represent one final barrier to access. Citizen requesters will balk at paying hundreds or thousands of dollars for information, and that’s harmful to the public interest in government transparency and accountability.”

It would be nice if the NM FOG has some success in this endeavor, but that is unlikely. The Foundation is well intentioned, but feckless.

Their fecklessness will only get worse when it starts to soak into the political consciousness of the state, that the FOG is giving APS Supt Winston Brooks their transparency award, while at the same time Brooks is stiffing the FOG over the surrender to public knowledge, of the results of an independent investigation into corruption in the APS Police Department.

The NM FOG to date, has offered no explanation of the disconnect between their recognition Brooks as a "champion of transparency" while at the same time fighting with him over his steadfast efforts to hide public records from public knowledge.

photo Mark Bralley

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