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SPONSOR: |
Irwin |
DATE TYPED: |
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HB |
205 |
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SHORT TITLE: |
Charges for Public Record Copying |
SB |
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ANALYST: |
Gonzales |
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REVENUE
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Estimated Revenue |
Subsequent Years Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY03 |
FY04 |
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$0.1 |
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Recurring |
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(Parenthesis ( ) Indicate Revenue Decreases)
LFC Files
Responses
Received From
Commission
of Public Records
SUMMARY
Synopsis
of Bill
House
Bill 205 amends the Inspection of Public Records Act to: require that copying
charges not exceed the record custodian's actual costs; remove the current
$1.00 limitation on charges for copying public records 11 x 17 inches and
smaller; and mandate that electronic data be copied by the means least
expensive to the public.
Significant
Issues
This bill removes the $1.00 per page cap on copy
fees of documents 11 x 17 or smaller so that agencies must charge reasonable
fees that do not exceed their costs for all copying. However, this could, in some cases, result in
fees for the 11 X 17 copies that exceed $1.00 per page. Additionally, the bill provides
no mechanism for determining “actual costs” would be a very time consuming
process, as those costs could vary greatly for each request.
Furthermore, this bill requires that the
custodian copy electronic data by the least expensive method; however, this
proposed changes conflict with Section 14-3-15.1 NMSA 1978, which allows the
state to charge fees and royalties for computer database information.
Both Attorney General opinion
and court decision have affirmed that the right to inspect public records
carries with it the right to make copies thereof, subject to reasonable
restrictions and conditions.
FISCAL AND ADMINISTRATIVE IMPLICATIONS
According to the
Commission of Public Records, the agency currently bases its fees on its
actual costs, subject to the one-dollar limitation on 11 x 17 and smaller
copies, but it is possible that some fees for these copies could increase with
the deletion, given the special nature of some records in the custody of the
agency.
The Records Center
Revolving Fund is created in statute and money from the sale of services
(including copying), equipment, supplies, and materials provided by the
Commission of Public Records is deposited in it. The fund is used to support activities
related to the provision of those services, supplies, etc. It is critical that the agency be able to
impose fees sufficient to recover the costs of providing services and materials
(including copying), etc. to other governmental entities and the public; otherwise,
it would be forced to seek general fund support to underwrite these activities
or perhaps be unable to meet all requests, especially requests for copies of
materials that require special handling.
Fees
are collected for copies of public records held in the State Archives, the
Administrative Law Division, and the Records Warehouses of the Commission of
Public Records. While the fees that are
currently charged are based on the costs for copying records (excluding the
costs for identifying and determining the availability of the record), there
are special considerations for archival records that make the fees charged for
copying more expensive than those customarily incurred by other agencies. Many of the paper documents held in the
Archives are extremely fragile and require special handling and must, if not
available in another medium such as microform, be copied by staff. Public records also exist in formats other
than paper, and many of those also cannot be handled or copied by the requestor
and must be copied by staff or a contractor.
In these cases additional costs are incurred. Further, while photocopying is the least expensive
form of reproducing some of these records, it may not be an option. This is the case with reproducing
photographs, film, and audio records.
The
Administrative Law Division has, in the past, reproduced the entire body of
current regulations (in paper) upon request and payment of the copying
fee. Such requests impose an administrative
burden on the agency. The agency has acquired temporary staff to complete the
copying task – but only after rigid orientation and with close supervision by
the staff of the division. While this
extensive copying of rules has now virtually stopped since the rules
compilation (the New Mexico Administrative Code or NMAC) is now produced
in-house and is available free on-line, copying public records in their various
formats for patrons is still a time-consuming and sometimes costly but
essential activity of an agency committed to providing access to public records. But the agency must continue to be able to
recover its costs, which this bill would permit.
The Commission
recalculates costs, including costs to reproduce electronic data, each time it
amends it rule on fees. Copies of public
records held by the agency are offered, depending on the record, either on a
self-service basis or a staff provided basis.
Self-service fees are based upon the actual cost of supplies, equipment
(depreciated) and equipment maintenance.
Staff-provided fees are calculated using the same factors plus staff
time to locate and copy the record.
However, the identification and calculation of those cost components can
be time-consuming.
The New Mexico State Library states: “the service intent is to give as broad an access as possible to patrons, both to public records and to other library materials. Generally, the patron does his/her own copying. Therefore, computer page copies coming off the printer are free for the first five pages. Additional pages are $.10 (ten cents) for each. This price policy was set to encourage copying but discourage frivolous copying and waste. The public copy machines in the State Library portion of the building charge $.10 (ten cents) a page for 8.5” x 11” pages and $.15 (fifteen cents) for 11” x 17” copies. This policy was set to encourage copying and to recover some costs for contracts, maintenance, and supplies on the machines. State Library reference staff will make unlimited copies free for state government employees, legislators, and judicial office employees. Therefore, removing the $1.00 cap would have little effect on this division’s performance.”
The
The actual costs of
employee time in finding the documents, removing the documents from the files,
removing staples and binders, copying the documents, putting the documents back
together, and replacing them back in their original location, plus the costs of
paper, toner, electricity and the copier can vary greatly for each
request. The variables involved include
the number of documents, how easy it is locate the documents, and whether the
documents are loose or bound together in some manner which can affect the ease
of copying.
CONFLICT
Section 14-3-15.1 NMSA
1978 should be reviewed with respect to its provisions for copy fees to ensure they
are compatible with the "least expensive" provision in this bill.
OTHER SUBSTANTIVE ISSUES
The following issues
were reported by the Commission of Public Records:
(1) Copying electronic data for the public should
be relatively simple; however, the costs incurred by any agency responding to a
request for electronic data will always be in identifying the records and
isolating those for copying without either compromising any confidentiality provisions
or losing the record’s provenance and meaning for the requestor. Section 15-3-15.1 NMSA 1978 mandates that
fees shall be charged for searching, manipulating, or retrieving data from a
database or for copying a database.
(2)
Many agencies have implemented imaging systems to improve access to
public records. The records stored in an
imaging system are in electronic form and will be subject to the provisions of
this legislation. Providing copies of
these records should not prove difficult, but may be expensive if the cost of
the system and migration are included.
(3) Finally, it must be noted that the person
requesting electronic copies may prefer the copies be provided in a particular
medium or format – a diskette or a CD, for example – and the use of that
preferred medium or format, which is factored into the cost of reproduction,
may not result in the "least expensive means" of copying. Since the amendatory language on page 2,
lines 15 and 16 mandates the custodian to "copy the electronic data by the
means least expensive to the public," does this imply that the custodial
agency will not be able to provide the customer the information in the
customer's preferred medium or format if it is more expensive, even if the
request is reasonable and within the agency's capability?
It seems that the reason
the law was originally written was so that custodians could impose a per page
cost for copies rather than “actual cost” to make the most efficient use of the
time of public records custodians so they could timely respond to public
records requests in accordance with the law.
By changing the law to require custodians to determine the “actual cost”
of copies, it will make it more difficult to comply with the fifteen day time
limit for responding to inspection of public records requests, which can often
be a difficult task in responding to some requests.
POSSIBLE QUESTIONS
The provision of this bill requires that the custodian copy the electronic
date by the least expensive means; however, will the agency be able to provide
the requested information in a medium or format requested by the customer if if
is more expensive ?