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Access to Electronic Records

by the Reporters Committee for Freedom of the Press

CPSR News Volume 13, Number 2: Summer 1995

When the Dayton Daily News wanted to beef up its computerized reporting, the county government allowed the newspaper to hook up to its electronic jail files, court records, mortgage deeds and voter registration records - for $40 a month.

And when a freelance reporter requested copies of electronic mail written by high-level administrators at the University of Michigan, the school said the information was off limits. But in Washtenaw County, where the Ann Arbor campus is located, the county government disagreed, and adopted a resolution to make the county government's email an open record.

Similar stories of electronic nightmares and nirvanas are commonplace across the country. Confrontations result in lawsuits, legislative action, and policy decisions, which reach widely varying conclusions in different states, cities, and agencies. Reporters often struggle for access to database information. The Brechner Center for Freedom of Information in Gainesville reported in 1991 that 75 percent of Florida journalists surveyed said their access to computer records had been impeded by government agencies. In addition, cost dissuaded 38 percent of responding newspapers from seeking electronic records.

Certain conflicts over access to electronic records are especially common.

Public Access Terminals
Even obtaining copies of records in a generic format has been an issue for small news organizations unable to purchase the tapes or disks. To avoid the expense, many reporters go to agency offices to read documents.

Some agencies provide computer terminals for public use. Others post printouts of electronic files for public inspection. Montana is among the growing number of states that are beginning to put legislative information on line with remote access over the telephone.

Exemptions and Privacy Concerns
Electronic records are subject to the same exemptions from disclosure under open records laws as paper records.

75 percent of Florida journalists surveyed said their access to computer records had been impeded by government agencies

Will That Be Paper or Diskette?
The right of a requester to demand that information be provided as a computer printout, a computer tape, a disk, or in some other form varies by state.

The format in which information is produced can render data either very useful or practically useless. A computer can search through millions of drivers' records in a relatively short period. The same task could take a reporter weeks of poring over paper records.

Customized Searches
Legislatures have begun to address the issue of data manipulation. When an agency wants to restrict access to information, the records custodian may say that manipulating database information is "creating" a new record, which is often not required by law.

Others argue that "creating" a specialized record is the very essence of why databases are set up. Their primary function is to permit users to manipulate data and information.

Often, statutes that regulate the practice do not require an agency to manipulate computer data for requesters, but neither do they prohibit an agency's compliance with such requests.

Obtaining the Software
Among all electronic records questions, perhaps the responses vary most in cases concerning the release of software. Nearly every state allows agencies to keep information confidential if it qualifies as a "trade secret." The definition of a trade secret, however, varies from state to state and does not necessarily apply to software.

There are disputes over whether requesters may obtain copies of specific software to read coded electronic records. Copyright issues arise when requesters seek certain types of software. Commercial software is privately produced and licensed to the government, as with any other license.

Some software is prepared by a state agency or university. State-created software is arguably not proprietary since it was built using state money. However, unlike the federal government, some states claim that they may copyright items such as statutory compilations and computer programs. On the other hand, many states, like the federal government, do not recognize the concept of a government copyright.

Most states that have chosen to regulate access to software explicitly simply exempt it from their public records statutes, regardless of whether the program is commercial or agency-written.

Cost
The fees an agency charges for access to electronic data are critical to many requesters. Arbitrary and prohibitively high fees can undercut a requester's ability to invoke freedom of information laws.

There are nearly as many approaches to fees as there are states. Fees for computer time, programming time, printouts, supplies, labor, and overhead may be assessed against the requester. Many statutes dictate that an agency may not charge more than "actual cost." However, the National League of Cities resolved in December 1993 that cities and towns should set higher fees for access to electronically stored public information than for providing paper copies, to offset the costs of developing better computer systems. Many officials attempt to recoup more than costs. Their agencies try to use electronic records to generate revenue for the government's coffers. In response, members of the public often point out that they have already paid for electronic information systems through their taxes.

Reasons for Denial
Government agencies still deny requests for electronic information in many cases. Common reasons that agencies give are that:

• The same material already exists in printed documents.
• Public and private information are mixed together in the database.
• The open records law does not require the agency to "create" a new record by running a specific search or program.
• Agency programmers will be prevented from performing their "real" duties.
• Software is proprietary or copyrighted and thus cannot be distributed.

The substantive conflicts over GIS access involve fees and the desire of various governmental bodies to turn these systems into cash cows. At least 25 states have GIS laws on the books. Some GIS laws, such as Arizona's, are codified in the public lands code. Alaska's GIS law appears in its education code. Florida's law is included in the section on appropriations. California includes rules governing disclosure of GIS records in its open records law.

Planning a Strategy for Obtaining Access
Here are some practical suggestions to improve your chances of getting an electronic record in the form you need. A well-developed strategy may be more important for obtaining access to electronic records than for obtaining more traditional records.

Check whether online access is available. Downloading information into your own computer may save time and money. However, many agencies charge access time fees.

Gather Information Before You Make a Request
Determine whether data in the computer file are confidential under state law. If the information is exempt from disclosure under your state public records law, you probably will not get it more easily because your request is for an electronic file. But when in doubt, ask. Officials will tell you if they believe it is confidential. Establish whether the computer file contains information not in paper files. That information may be important to establish a right to the computer file rather than voluminous source documents.

Learn whether an agency can satisfy your request without additional software. If possible, determine whether the records custodian could easily supply a government official with the same information in the format you seek.

Agencies may use the need for more programming as an excuse to deny access. As a federal agency official observed, "Programming a computer may involve a simple procedure that can be done in a few minutes," or it may demand "many manhours to write a complex program." If an agency has issued computer-generated documents similar to those you seek, obtain those documents for evidence of its ability to meet your request.

If you want a tape, disk, or other electronic copy, make sure it will be compatible with your equipment. Reporters need to understand what their own equipment will do and what the agency's equipment can provide. Sometimes the news organization's computer specialist can discuss this with the agency's computer experts.

Make an Informal Oral Request
Determine whether an agency will be cooperative before using tactics that might be viewed as confrontational. A records custodian may provide records you need without requiring a formal request. If the agency makes electronic records available to other agencies, it may produce them for a requester. Many agencies now make computer terminals available for public use.

Make a Formal Written Request
Develop a good "paper trail." As you appeal an adverse decision, documentation of your request and the agency response will be valuable.

Show that your request is reasonable by including information you reamed earlier. If state statutes support your request, cite them. If any court decisions from your state support your request, cite those as well. Alternatively, cite other state or federal cases, especially those from jurisdictions that have public records laws similar to yours.

Because of the potential costs of computer access, it is important to discuss fees in your request letter. Ask that the agency incur no costs until it advises you, or state the maximum you are willing to pay. Ask for fee waivers where appropriate. Offer to discuss your request with agency officials to avoid delays.

Follow any denial with oral negotiations. Ask a records custodian if you can narrow a request to satisfy the custodian's concerns or reduce fees. Try to negotiate lower fees if necessary.

Appeal if Necessary
Determine whether an administrative appeal is available. Some states allow, or even require, review by another public official before an appeal to a court. Explain in detail why your request is, or ought to be, covered by the state open records law and why a denial is unlawful or unreasonable. Pursue a judicial appeal if necessary. If your request is important enough to you, it may warrant an appeal to a court. Seeking legal representation is best, but if you cannot afford an attorney, you may be able to pursue your own appeal. All evidence you have gathered will be important at this stage. You must also address cases that weaken your position. If a case is contrary, demonstrate how your situation is different from that of the earlier case.

Reprinted and condensed from the introduction to Access to Electronic Records, a publication of the Reporters Committee for Freedom of the Press Copyright 1990, 1991, and 1994 by the Reporters Committee

To obtain copies of the full 28-page report, including a :state-by-state survey of electronic access laws and practices, please send $6.00 to The Repotters Committee for Freedom of the Press, 1101 Wilson Blvd., Suite 191O, Arlington, VA 22209 To obtain a list of publications offered by the Reporters Committee, call 703-807-2100 or send email to rcfp@cais.com with "request list'' (without quotes) as the subject line of the mail Specify "request help" as the subject for a list of free publications and services available from our email infobot.

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