February 6, 2019

Bill to increase electronic record fees could be changed

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Andy Lyman

A state Senator who introduced a bill to change New Mexico’s Inspection of Public Records Act (IPRA), now seems to be looking to change the language in his bill.

Sen. John Sapien, D-Corrales, told the Santa Fe New Mexican Tuesday his bill to allow public bodies to charge up to $1.00 per page for electronic records was “not nefarious,” but instead was in response to public bodies being “deluged” with requests for free electronic records.

But when NM Political Report reached out to Sapien for further comment, a representative from his legislative office said the Senator did not want to talk about the bill.

Sisto Abeyta, on behalf of Sapien’s office, returned a call to NM Political Report and hinted Sapien’s bill may change, but he did not have specifics.

“We are going to hold off on the record right now because we’re still working through some issues with the bill,” Abeyta said. “So, this may not be the version in front of the committee but we’re working with all interested parties to try and figure this out.”

The New Mexico Foundation for Open Government said they oppose Sapien’s bill as it is currently written.

The concerns he raised with the Santa Fe New Mexican line up with a formal complaint NM Political Report filed against the University of New Mexico last year.

After NM Political Report filed the complaint against the UNM in August 2018, the New Mexico Attorney General’s Office determined the university did indeed violate IPRA. The complaint stemmed from a records request by NM Political Report regarding a legal settlement involving the university’s medical school and a former medical resident. UNM produced a single PDF file and a bill for more than $500 if NM Political Report wanted the electronic file transferred to a storage disk. The university ultimately gave NM Political Report 20 printed pages for free. According to IPRA, the school could have lawfully charged up to $1.00 per page, or $20.00, to recoup the cost of paper and printing.

Sapien also told the Santa Fe New Mexican that the cost of “putting together an electronic copy” is the same as what it costs to gather printed copies.  

IPRA does not, however, allow public bodies to recoup the cost of labor to gather documents.

A public body “may charge the actual costs associated with downloading copies of public records to a computer disk or storage device, including the actual cost of the computer disk or storage device,” the law states.

In a letter to UNM, the AG’s office wrote that the university would only be justified in charging $0.30 per electronic page if that were the actual cost to transfer the electronic file to a portable storage device. For context, IPRA states that charging for the time it takes to make physical copies is acceptable, but not the time it takes to gather records and determine which ones are considered public.

In contrast to UNM’s fees for electronic copies, in the past, other public bodies have provided NM Political Report electronic copies for the cost of a new storage device. Albuquerque Public Schools, for example, has provided electronic records for less that $20 to recoup the cost of a new storage device. In cases where files are small enough, APS has provided records for free via email.

Other public bodies are even more generous.  

Several days after the AG’s determination letter, NM Political Report requested records from the New Mexico Military Institute in Roswell regarding a separate story. The military institute not only did not charge for a portable storage device, but also express mailed it to NM Political Report for free.