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Bill targets state’s open records law

Copyright © 2019 Albuquerque Journal

SANTA FE – Public agencies in New Mexico would have the ability to block the release of public records in certain circumstances – and they could impose higher fees – under legislation proposed in the state Senate.

The proposal, Senate Bill 232, sponsored by Sen. Pat Woods, R-Broadview, was introduced Thursday and referred to two committees for further consideration.

Woods said his proposal is aimed at companies that request and resell records and at frivolous, time-consuming requests, not at the general public, journalists or those doing legal research.

But transparency advocates are calling the proposal, which would amend the state’s Inspection of Public Records Act, a “disaster for the public and for the citizens of our state.”

Melanie Majors, executive director of the nonprofit New Mexico Foundation for Open Government, said the bill would allow the government to curtail and restrict access to public records and impose excessive fees.

Under the current law, agencies generally may not charge for the staff time it takes to redact or search for records. Agencies can charge reasonable fees for copying or the actual cost of, say, downloading information onto a storage device or putting records in the mail.

But under the proposed changes, public agencies could:

• Charge a “service fee” for access to public records if the request requires “extensive use” of staff or information technology resources.

• Charge the “commercial market” value of records if they are requested by someone for a “commercial purpose,” such as reselling the information or using it to solicit businesses. Agencies could also charge for staff time to handle the request if it’s for a commercial purpose.

⋄  Seek an injunction blocking an inmate from getting requested records when it would create an “undue burden” on a public body, among other circumstances.

The bill includes several provisions aimed at requesting information for a “commercial purpose.”

State law now prohibits requiring people to say why they want to look at public records.

But Woods’ bill would require people to disclose whether they’re seeking the records for a commercial purpose and, if so, how they intend to use the information.

When handling requests for a commercial purpose, the public agency would have extra flexibility to deny access to the records.

It could petition the governor to bar disclosure of the records if the agency believes the request “is a misuse of public records or is an abuse of the right to receive public records.”

Under the proposal, journalism and legal research would be excluded from the definition of “commercial purpose.”

The bill would also create a section in law allowing recovery of legal fees and costs if someone files a lawsuit to get access to records but loses the case.

Woods said the legislation is based on laws in about five other states. Responding to requests for public records, he said, consumes valuable staff time.

“I’m trying to make a point here,” he said in an interview. “Is it right to tie up our state government on requests that are either frivolous, or they don’t get to recover the cost it takes to pull that information out?”

Majors said the proposal threatens basic tenets of the public’s right to know.

“It would gut the Inspection of Public Records Act and would set New Mexico on a very slippery slope,” she said in a statement. “This is a terrible anti-transparency bill.”

Many states are moving in the opposite direction, she said, increasing citizens’ access to public information and records.

Senate Bill 232 “is a blatant attempt to block the public’s access to their own information,” she said.

To win passage, the proposal would have to clear two Senate committees – Public Affairs and Judiciary – and the full Senate, before heading to the House. If approved by both chambers, it would go to Gov. Michelle Lujan Grisham.

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