Over the last two days we have discussed some concerns that the amended version of Senate Bill 1 raises with regard to (1) the definition of a public record and (2) the blanket exemption of dates of birth and telephone numbers. Ernie Schreiber posted a compelling comment on the latter, explaining with care and clarity the important role that identifying information such as dates of birth plays, not just for newspapers, but for all of us.
Today we will look briefly at fees. See Section 1307 of Senate Bill 1.
While almost no one objects to charging “reasonable” fees for copying and producing records, the definition of reasonable has been the source of some contention. Is it based on some comparable commercial value? Is it simply the cost of copying documents? What about the time of the clerk or administrative person charged with finding and reproducing the document?
Four things to keep in mind (I’m sure there are many more, so feel free to add to the list):
1. Agencies have charged exorbitant fees in the past in ways that seem designed to either discourage records requests or to punish requesters. That may have had less to do with trying to hide something than with simply trying to avoid the time-consuming work of finding the records. . . . Or it may not. But the point is that it underscored the notion that the records were the private property of the agency, and the agency did not want the public to see them.
2. One person’s reasonable fee is another person’s barrier to information. For some a few bucks to pay for a document we want is pocket change. For others it might be supper for the kids. The point is . . . open-records reform should seek to expand access to the public – all the public – who, after all, own the records in the first place.
3. The foremost responsibility of the media in this country is to provide public oversight of government activities. Charging newspapers “commercial fees” for information they need to do their jobs is wrong. The often contentious relationship between the press and the legislature may make members of the latter howl with laughter about such a claim by the press, but I think James Madison put it pretty well a couple of centuries ago:
“In the United States the case is altogether different [from Great Britain]. The People, not the Government, possess the absolute sovereignty. The Legislature, no less than the Executive, is under limitations of power. Encroachments are regarded as possible from the one as well as from the other. Hence, in the United States the great and essential rights of the people are secured against legislative as well as against executive ambition. They are secured, not by laws paramount to prerogative, but by constitutions paramount to laws. This security of the freedom of the press requires that it should be exempt not only from previous restraint by the Executive, as in Great Britain, but from legislative restraint also; and this exemption, to be effectual, must be an exemption not only from the previous inspection of licensers, but from the subsequent penalty of laws.”
4. Finally, the computer age has made many of these matters obsolete. A couple of readers pointed out the difference this makes with great clarity last November:
1. “The truth is that most of those involved in the discussion on open records seem to have little understanding of the role computing should play in providing access to government records. Today, computer storage is so plentiful and inexpensive that for purposes of this discussion, it might as well be considered free and infinite. It is far less expensive than paper. All government records should be stored permanently (indefinitely) on electronic media. There is no logical reason to ever delete an accurate government record. In addition, when a record is deemed public, the cost effective path is to simply post it on the Internet in a document database with a capable search engine. Sophisticated work flow software exists that would automate much of this process and no doubt streamline the existing record keeping systems in state government. There is no need to create a large state bureaucracy that exists to send requested documents attached to emails, or even worse, print them out and snail mail them to those requesting information. The public (and yes, even the media) is perfectly capable of finding information as long as it is stored in a well-constructed database along with appropriate search technology (think Google).”
2. “The debate on open records seems to be going on as though the constitutional convention in Philly were still in session. The quill is gone and the computer has replaced it. But our laws haven’t kept pace with our technology. Put it on the Internet with a search engine and let the chips fall where they will. Unfortunately our legislators do know enough about technology to avoid such a transparent environment. And that is why we do need a revision to the current open records law. And that is why the revision needs to be crafted with today’s technology. . . .”