Open-government advocates nervously await two decisions they say could flip laws allowing free inspection of government documents and instead permit agencies to charge for access to public electronic records, including emails.
Judges and administrators are finalizing a court case and rule that will test and perhaps constrain what information John Q Public gets about his government, how he gets it and whether he has to pay for it. At issue is whether governments and agencies are keeping up with technology or using the changing world of the internet as an excuse to limit public access to their decision-making process.
“Definitely we’re worried about our public access, our freedoms and our ability to cover the news,” Wyoming Press Association president Toby Bonner said. “If it’s public information there shouldn’t be a charge for it.” Government lawyers say charges are appropriate in a world where business is increasingly conducted electronically and clerks have to fetch digital files.
In a case before the Wyoming Supreme Court, the Wyoming Tribune Eagle questions whether a Laramie County school district is allowed to charge it for accessing and reading electronic public documents — in this case emails.
At the same time, the Department of Administration and Information is finalizing a rule that would charge the public to see some state government emails and other documents. Department officials did not accept WyoFile’s request for an interview.
The Wyoming Press Association and good-government advocates point to bedrock elements of Wyoming public records law they say suggest both the school district and state administration department are off-base. Key to the open access argument is a clause in the public records law that states “Nothing in this section shall be construed as authorizing a fee to be charged as a condition of making a public record available for inspection.”
Advocates concede that administrators and bureaucrats may charge reasonable fees for copying documents — especially large numbers of them. But law prohibits an agency from charging a fee for just looking at public records, regardless of whether they are in electronic or printed form, they contend.
The Department of Administration is proposing charges of up to $40 an hour for staff time and the “actual cost of programming and computer services,” in some instances, for the public to view electronic public records. Fees for requests amounting to less than $180 would be waived.
“We would maintain that Wyoming Statute … specifically forbids such a fee,” Wyoming Press Association Director Jim Angell wrote the department in May. “We feel very strongly that charging a fee to have a member of the public simply look at a document is contrary to the intent of Wyoming’s Public Records Act.”
Charging such fees is not only illegal, it’s unwarranted, he wrote.
“We also feel it is unreasonable to ask a member of the public, whose taxes paid to generate and store a document, to pay once again to review a document he or she already owns,” Angell said.
He also is riled by a proposed up-front charge. An applicant must “pre-pay the estimated costs before the custodian produces or constructs the electronic public records or provides any copies for inspection,” the department of administration proposes.
That’s an unjustifiable roadblock, Angell said. “The idea that the person requesting documents will not be able to see the documents requested until after the fees are paid seems an unreasonable obstruction to the review of public documents,” he wrote.
Supreme Court is already considering fees
It is vexing to open-government advocates that the Department of Administration is proposing its contentious rule while the Wyoming Supreme Court mulls the controversial elements included in that rule.
In the case involving the Tribune Eagle and the Laramie County school district, the district charged the newspaper for access to emails about public business, some of which school board members sent and received on private accounts.
The hang-up, or differing interpretations on this and other cases arises from a clause in the public records law that allows administrators to charge “reasonable costs of producing a copy of the public record.” Does that mean a bureaucrat can charge somebody to look at a public document, even if she doesn’t want to take away a copy, Wyoming Tribune Eagle attorney Bruce Moats asked the Supreme Court.
The school district argued that it may seek payment from the newspaper because “‘fees’ and ‘costs’ are not the same; The limitations on charging ‘fees’ for inspection in the Act does not apply to the costs of employee time,” the district said in a brief.
Even though the newspaper asked only to inspect the public record “it was necessary and appropriate (as would ordinarily be the case with electronic records) for the District to produce a copy of the records for inspection,” the school district said. “The clear intent of [the Public Records Act] is to establish special provisions for the recovery by agencies of the reasonable cost to comply with requests to inspect and to copy public records that exist primarily or solely in an electronic format.”
But the format of the public record should not matter, newspaper attorney Moats argued. “The Legislature certainly did not intend that a record in printed format can be inspected free of charge, while inspection of the same or similar record in electronic format can result in charges,” he wrote in a court brief. “Such an interpretation of the statute would lead to an absurd result.”
The Tribune Eagle and parent company Cheyenne Newspapers Inc. went to the Supreme Court after a district court ruled against the newspaper. That decision “changed the language of the Wyoming Public Records Act by dropping the phrase ‘a copy,’” Moats argues. “The dropping of the phrase changes the meaning.
“The Public Records Act does not say that a custodian may charge for simply ‘producing the record,’ or in other words, ‘making the public record available for public inspection,’” Moats argued.
“Allowing an entity to charge for locating and making a record available will open the proverbial ‘can of worms,’ leaving the amount of charges subject to the entity’s record-keeping practices and the skills and training of its employees, and resulting in citizen access depending on the amount the agency decides to charge and one’s ability to fund a court battle,” Moats argued in court filings.
The pending rule and suit raise the question of how well Wyoming governments, including small, local ones, are keeping up with technology, much of which is designed to increase access to information. “One would hope that agencies are maintaining their records in a manner that they are able to efficiently locate and use the records in the conduct of their official business,” Moats wrote.
Press Association president Bonner agreed the question is an open one. “I don’t think they’ve probably kept up on it,” he said of governments’ move into the digital world. “It is up to us to continue to educate counties and hospitals about open meeting laws and emails and what’s correct and what’s not allowed.”
Pending decisions could be precedent setting. “I think in the past there’s only been a charge for printed copies,” Bonner said. “I don’t believe there’s been a charge for access itself.” In a summary of the Tribune Eagle case Moats underscores how Wyoming’s Public Records Act must be interpreted “when read as a whole and liberally in favor of openness.”
Legislature started it, governor carries banner
In a state that routinely assails the federal government for so-called “burdensome regulations” Senate File 67, known as “Administrative rules — streamlining” was very popular among lawmakers in 2014. Proposed by the influential management council the streamlining bill sought, among other things, to adopt standards for “inspection, copies and production” of electronic public documents.
The Legislative Service Office said there would be “no significant fiscal or personnel impact,” as a result of a new law. It said nothing about potential savings.
In 20 business days, lawmakers cast 138 roll-call votes for the measure, none against. Under Gov. Matt Mead’s signature, “streamlining” became law. The Department of Administration and Information responded to the new “streamlining” initiative by producing four new pages of fee-setting rules.
Now the state wants to join the legal brouhaha between the school district and the newspaper. About a week ago Wyoming filed a motion asking that it be allowed to join the lawsuit on behalf of the school district. Among other reasons, state lawyers say, is that officials are getting more and more requests for electronic documents — thousands of requests.
The newspaper objected, saying Wyoming won’t add anything to the arguments. More requests for electronic public documents are understandable given that much business is done electronically today.
“The State appears to want to make a political argument about the burden of providing public access to records that would not assist the Court in interpreting the language of the statute,” Moats wrote. Allowing Wyoming to intervene would make the case more expensive, he argued.
— This story is part of a six-topic series addressing issues of importance to Wyoming sponsored by the Wyoming Humanities Council as part of the Pulitzer Prizes Centennial Campfires Initiative, a joint venture of the Pulitzer Prizes Board and the Federation of State Humanities Councils in celebration of the 2016 centennial of the Prizes. The initiative seeks to illuminate the impact of journalism and the humanities on American life today, to imagine their future and to inspire new generations to consider the values represented by the body of Pulitzer Prize-winning work. For their generous support for the Campfires Initiative, we thank the Andrew W. Mellon Foundation, the Ford Foundation, Carnegie Corporation of New York, the John S. and James L. Knight Foundation, the Pulitzer Prizes Board, and Columbia University — Ed