Senator Gard is attempting to stiffen the public access laws with SB 232, primarily through the assessment of civil penalties of up to $1,000 for violations of the public access laws and through mandating that judges and the public access counselor review withheld or redacted records.
There is a section in here that highlights nicely the bind public officials are in with respect to public records.
Sec. 9.5. (a) In addition to any other civil or criminal penalty imposed, if an officer or employee of a public agency knowingly or intentionally:
(1) denies or interferes with a person’s request for inspection or copying of a public record if:
(A) the person’s request meets the requirements of this chapter; and
(B) the record is subject to disclosure by law;
(2) charges a copying fee that exceeds the amount permitted by this chapter; or
(3) discloses without authorization or fails to protect information classified as confidential by state statute;
a court may impose a civil penalty under subsection (b).
Got that? A public official faces a fine if he or she improperly denies a public records request but also faces a fine if he or she improperly discloses a confidential record. It is not always crystal clear which category a document falls under. And if a citizen makes a kitchen sink document request, asking for piles of documents, detecting the confidential record is going to be like detecting the needle in the haystack.
Another wrinkle is that if records are redacted, a judge is required to review public records “in camera” (usually, in his chambers, outside of the presence of the parties) if the records are redacted and a complaint is filed alleging that the records were redacted improperly. I am sure judges will appreciate mountains of paperwork to sift through, comparing the originals to the redacted versions to determine the propriety of the redaction.
Similarly, when a formal complaint is filed with the public access counselor, the public agency would be charged with turning the records over to the public access counselor for review to determine if the records were properly redacted or withheld. Along with the records, the public agency is charged with providing an inspection index that:
(i) gives the title or name of each document, or any part of the document, claimed to be exempt from disclosure;
(ii) provides a description of each document that is general enough to explain the exemptions without compromising the alleged reason for the exemption from disclosure;
(iii) lists the reasons that each document, or any part of the document, is alleged to be exempt from disclosure; and
(iv) fully explains why the alleged reason for exemption from disclosure applies to each document.
I am all for public access by citizens. It is an important part of democracy, but here is the problem. It is dead simple to write a public records request that calls for the disclosure of 15,000 pages of documents or more; requiring no real effort on the part of a citizen who maybe has an axe to grind with the public agency. In response, the public agency has to devote a non-trivial level of resources to finding the documents, sorting through them to determine which ones are required to be withheld, which ones are permitted to be withheld, and which ones are required to be disclosed. Now, the hypothetical axe grinding citizen is not going to be satisfied with any level of disclosure; so he or she spends an hour or two writing a formal complaint to the public access counselor. Now, the public agency is required to go through the thousands of pages of documents and create a privilege index for them. Next up, the aggrieved citizen cuts and pastes his or her complaint to the public access counselor and turns it into a complaint with the court.
Maybe it is just the nature of the beast. Democracy is wasteful and expensive at times. But it seems that, if we are devoted to the idea of streamlining local government and slashing budgets; perhaps a better mechanism is in order to preserve transparency while restraining the ability of a handful of disgruntled citizens to tie up significant taxpayer resources and increase burdens on local government.
I don’t suppose the State wants to fund a public access coordinator for each unit of government whose job it is to track down all the requested documents, redact it appropriately, and do all the indexing when the time comes? Didn’t think so.
You are absolutely correct in the mess this provision could create. Any public official working with this issue already is aware of the nightmare that a request can create. Another factor touched on is the cost that can be charged for production of the material–the only charges allowed are the actual reproduction cost without labor considered (or fee set in accordance with the provision such as 10 cents per page) and can not charge for any “labor/time” thus a cost of several hundred dollars could be incurred in seeking to satisfy not only the request but other provisions of the law (confidential/non confidential, etc.
Another factor that has created a totally new concern is the use of technology–not only computer storage but the whole use of email–which can be requested that all emails are to be kept and available for public disclosure—can be an unbelievable problem of finding, not deleting, etc. etc..
What’s good for the goose is good for the gander! Normal citizens and their businesses face similar “catch-22’s” when dealing with the unclear language within environmental statutes enforced by the EPA and IDEM, with medical and health information when dealing with HIPPA, when dealing with import/export laws, etc., etc. And it costs them a lot of money and time for dubious value to society. So it’s time that public officials have to deal with the same conundrums and time wasters as well!
Seriously, neither public officials nor citizens should ever be put in this position. Ambiguous laws should either be made more clear or repealed, as well as laws that keep a few people happy for little benefit to most.
To Mark: just a simple point (and agreeing there are too many regulations for businesses) but in order to survive the business must pass on the cost to consumers. Governmental units are financed by taxes from you and I (business and individuals) and the more hoops to jump through the more the cost to us–thus some units do have “compliance personnel” who are paid by us to seek to ensure all the hoops are jumped through. The laws on disclosure do not allow for passing on cost of request to the requestor only “reproduction costs” (that is, supplies and machine use.) An interesting place to visit in the Public Access Counselors website where the office responds to up to 300 complaints each year due to failure of either the open door law or public access law. This will illustrate the extent of some requests.
No different than this joke:
Three men find themselves in jail and get to talking, discovering that each owns a gas station.
Man #1: I’m in here for price gouging. What are you guys in for?
Man #2: I’m in for predatory pricing. I saw #1’s prices and thought I could save my customers some money and get their business.
Man #3: I’m in for collusion. I try to make my prices the same as my nearest competitor’s.
It’s hard to act sometimes without breaking a law, no matter how good your intentions are. Maybe this instance will lead to a greater recognition that we have too much codification, and a bit of a push to streamline it.