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Public records bill could increase costs, limit access

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A pre-filed bill in the 2019 legislative session would change public records law and has been opposed by open government and news media groups. The New Mexico Capitol building in Santa Fe is shown in this Friday photo. (AP Photo / Morgan Lee)

Open government, news media groups oppose measure

 

Proposed state legislation that would increase fees that could be charged for public records and could limit access in certain cases is being called a “terrible anti-transparency” action by an open government advocacy group.

Sen. Pat Woods, of Broadview, said that the main purpose of his proposed legislation, Senate Bill 232, is to allow public entities a way to recover the costs associated with fulfilling records requests.

“Essentially this law would increase service charge fees, not to exceed the actual costs. But if there was an extensive use of technological resources or labor, then they could recover those costs,” said Woods, a Republican representing District 7, which represents parts of Curry, Quay and Union counties.

Existing state law, the Inspection of Public Records Act (IPRA), allows public bodies to charge for the costs of copies or digitally transferring files, not for the costs of compiling the records.

But Woods’ bill deals with more than costs. It also contains provisions that would restrict access in certain cases.

Journalists and judicial or quasi-judicial bodies would continue to have the same access as allowed now, but the proposed bill would require entities intending to make money off the information to identify the reasons for their requests. Public bodies then would able to charge fees based both on the cost of fulfilling the records request as well as on the “reasonable value of the reproduction on the commercial market,” as determined by the public body.

The bill also would allow public entities to request gubernatorial authority to deny requests by commercial interests if they considered the request a “misuse or an abuse” of public records and to obtain court injunctions against incarcerated individuals if public agencies can prove that inmates’ public record requests are meant to harass or intimidate.

Woods said that he drafted the bill after hearing the complaints of some state agencies, but he chose not to identify those agencies and said he was not able to provide a specific example of a problematic request.

He added that he thought the bill could help curb companies from obtaining email addresses or phone numbers used for solicitations or “spoofing” scams.

Five other states, including Texas, California, Washington state, Arizona and North Carolina, have similar statutes, he said. 

Those laws do have some provisions that are contained in Woods’ bill. Texas does prohibit public record requests by the incarcerated, but otherwise grants access without explanation for the requests. The California law allows fees to be charged for such things as the prorated costs of duplicating equipment, for example. The law in Washington state prohibits public records requests for commercial purposes. The Arizona law contains provisions regarding requests for commercial purposes that is similar to Woods’ bill, while North Carolina statute allows requestors to be charged for labor or information technology costs associated with locating or compiling records.

Woods said that he doesn’t know if the bill will make it out of its first committee assignment, which had not been made by press time.

“But at least it will shine a light on a problem that I think exists,” he said. “Not many people have much empathy for state government, but there are some cases that this deal is being abused in my opinion.”

The New Mexico Foundation for Open Government (FOG) and its member organizations the New Mexico Broadcasters Association and the New Mexico Press Association are opposing the bill.

“We have already paid for that (public records access) as taxpayers,” said FOG Executive Director Melanie Majors. “Those materials have already been created and existed, are already paid for by taxpayers. We are just asking for access to them.”

She termed any type of restrictions on who has access as a “slippery slope.”

“We think it is bad legislation,” she said. “It doesn’t do anything to move the state along. If anything, it puts the state back into the dark ages. We want the state to be progressive and move forward and for citizens to have access to their information because that is what is done in a democracy.”

She said that concerns about personal identifiers such as phone numbers and home addresses being released should be handled by agencies following current law regarding redactions and that the solution to burdensome requests is to make more information available on websites.

“One of the ways to avoid this, ‘Oh, we are getting so many requests’ — well, the response to that is go ahead and let’s put some of this information online and make it easily accessible so people can get it and you don’t have to sit there and monitor all of that.”

She added that she is willing to meet with any legislator who thinks the current law needs to be changed.

“FOG has worked with legislators to protect the public’s right to information,” Majors said, “and FOG is more than willing to meet with Sen. Woods to discuss his issues to see if there are some things we might work on that might improve IPRA.”

Senior Writer Lisa Dunlap can be reached at 575-622-7710, ext. 310, or at reporter02@rdrnews.com.