On June 14, the Rio Grande Foundation, a conservative nonprofit based in Albuquerque, requested budget records for Santa Fe Public Schools' 2009-10 year. They wanted them electronically, so SFPS named its price:
$1,239.25.
A heated debate has ensued on
what the state's Inspection of Public Records Act really means.
---
Angry e-mails and accusations of unsophistication aside, the main issues are these:
1. Why won't SFPS just e-mail the documents and save everyone a big hassle?
2. How much can public entities charge for public records?
3. What does technology—and public entities' interpretation of it—mean for the future of IPRA?
1. How hard could it be to
just e-mail the documents
?
Last year, when the Rio Grande Foundation made a similar request, SFPS responded, as many agencies do, by e-mailing the documents. "That provision was made in error and
contrary to policy
," Tony F. Ortiz, the attorney for SFPS, tells SFR.
So...no more electronic records?
"Legal counsels have been advising districts all over the state that we not provide electronic documents," SFPS Superintendent Bobbie Gutierrez tells SFR.
Ortiz says that's because "there are
increased risks of document alteration
when you provide electronic copies."
He also worries about "unfettered dissemination: You provide an electronic copy, somebody hits 'Send,' and
you end up with something going out in ways it was never intended to be disseminated,"
Ortiz says.
The obvious argument is that a public record is by definition public. IPRA specifically states that no one requesting a public record need reveal what they plan to do with it (and newspapers like SFR, which often request records, are in the business of dissemination).
Ortiz recognizes that, but says SFPS is still concerned "about how these records get taken, used [and] disseminated.
Hard copies [are] a little easier to control."
Ortiz also says it's
harder to redact things from electronic records.
When SFR brought up Ortiz' prior point about electronic records being easily alterable, Ortiz replied that inking stuff out with a black marker beats deleting it from a database. In the latter case, he says,
"You're requiring the District to have someone with computer expertise
who's also searching out which documents apply."
2. At what cost?
It's worth noting that this whole flap could have been avoided if the Foundation had agreed to come inspect the records in person (at no charge). As it is, though, the District planned to charge the Rio Grande Foundation for paper copies at $0.25/page—well below the allowable threshold of $1/page, Ortiz notes.
"It is
standard practice for every public entity to charge some basic cost
for providing this information," Ortiz says.
"If we were being sticklers, we would go back and try to charge them now."
Calling it "standard practice" may be premature. Though IPRA allows for "reasonable fees for copying," most agencies allow the public to inspect the records for free and only charge if you actually want to take them home.
SFPS offered this—but as the Foundation staffer who dealt with the request tells SFR,
"That was not useful
because we are putting it on our website." The Foundation offered to send a disk and pay for postage—but for reasons stated above by Ortiz, that wasn't useful to SFPS.
Then, according to Gutierrez,
things got ugly.
"[The Foundation staffer] sent what I thought was a
very threatening e-mail,
calling us a bunch of bureaucrats," Gutierrez tells SFR. From a copy of the e-mail forwarded to SFR by the Rio Grande Foundation:
Taxpayers already pay government bureaucrats in the Santa Fe school district to do your jobs...we will not be paying the district more than a thousand dollars for information that belogs to the taxpayers.
"They
are
government bureaucrats!"
the staffer who sent the e-mail tells SFR. "All it says is what I told you: These are taxpayer records paid with taxpayer money, and [they] belong to the public!"
3. Technology and the future
So...what does all this mean?
Ortiz says the nature of IPRA requests are changing. "Rather than people showing up and saying, 'I want these 2,000 pages in paper,' they show up with a thumb drive and say, 'Please download everything for me,'" Ortiz explains. "That brings with it a number of different challenges."
Legally, though, the onus is on the public body to find a way to meet those challenges and provide the requested record. But the ability to download information rather than use up reams of paper (and gallons of Sharpie ink) copying and redacting them could be a good thing.
In this case, Ortiz says,
SFPS "fully complied with the letter and the spirit of the law,
to the nth degree."
But the Foundation staffer begs to differ. "The point is, this is public information on how they are spending taxpayer money," she tells SFR.
"That the law does not force them to provide that doesn't make it right."
Paul Gessing, the Foundation's president, tells SFR that the Foundation has not gone in person to inspect the records.
...
A few salient points from the New Mexico Inspection of Public Records Act (pdf):
1. ANYONE can inspect ANY public record.
Public records are defined as "all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials...used, created, received, maintained or held by or on behalf of any public body and relate to public business," with exceptions ranging from the obvious, like medical records, to the more esoteric. (Some public entities, like
, have laws protecting some of their records.)
2. Every public body
must have a records custodian
who's responsible for dealing with IPRA requests.
3. Public bodies don't have to create records to satisfy a request, but they have to respond.
4. Custodians who receive written requests to inspect records must:
a) "permit the inspection
immediately or as soon as is practicable
under the circumstances," BUT
b)
not later than 15 DAYS after receiving the request,
and
c) "If the inspection is not permitted within
three business days
, the custodian shall
explain in writing when the records will be available
..."
d) If the request is "excessively burdensome," the custodian may request more time.
5. Records custodians "may charge
reasonable fees for copying
the public records...not in excess of $1.00 per page."
Cross-posted at SFR Muckraker's Guide.
