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Public vs. privatized records, who's winning this war?

FOI Alert Volume 2 Issue 11

Elected officials have found a new pot of gold: public records.

Pumping up the price for every-day documents is, after all, less controversial than raising taxes. And most of those affected will begrudgingly pay higher prices.

Why? Because their livelihoods depend on current and accurate information maintained by government.

Those who rely on this information to make a living, like paralegals, detectives, those who provide bonds to get people out of jail, even employers who do criminal history checks, are finding their fees have increased -- or will increase dramatically.

Media groups were caught napping when Ameritech hit the Indiana statehouse and passed enhanced access legislation. In 1993, such a law was passed in Indianapolis allowing reasonable fees to be charged for records gained through systems providing enhanced access -- but often higher than direct costs.

Direct costs are what most would prefer to pay.

Enhanced access usually means data is available off site and online.

These loaded little words are usually inserted quietly into legislation by lobbyists and little noticed by the press.

So be aware of what is happening in the Statehouse.

These are stories that also aren t well reported. Most have a Golly/Gomer Pyle attitude about government database. These gee whiz stories about what nifty stuff comes out of a computer these days rarely examine the public records side Do these systems comply with existing state laws? Will fees increase? Are users satisfied with these new systems? Do private contractors with government have to comply with state laws or releasing documents - the same as government does?

The National Newspaper Association and American Court & Commercial Newspapers are currently conducting a joint research project examining public-private data partnerships. Concerns over user fees split between government and private access providers is driving the debate.

With the creation of CivicLink by Ameritech, some fees for popular government records increased from $1 per copy to $5 for the add-on cost of enhanced access.

In late December, a federal court judge in Indianapolis dismissed a class action lawsuit challenging the contract between Marion County and Ameritech that gave the company the exclusive right to provide offsite electronic access to various records.

A paralegal company, one of the plaintiffs, said the monthly cost for records under CivicLink would cost her $4,000 -- a phenomenal increase from $261 a month she had previously been charged. In an unfortunate decision, Judge Larry McKinney ruled: It is not the role of this court to determine whether the amount charged for use of this service is `reasonably related to reasonable and just rates and charges for the service.

The ruling is not clear as to who should arbitrate the issue of reasonable fees if the courts decline.

McKinney s ruling also runs contrary to the preamble of the state s public records act: Providing persons with (government) information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide information ... Ameritech now has contracts with Illinois and California giving it exclusive rights to distribute court records on-line and is pursuing enhanced access legislation in a number of states.

Legislation is pending, or has been passed in many states, to pave the way for Ameritech contracts including Missouri, Washington state and Michigan. Legislation may also have been introduced in Colorado.

Another word to be wary of in legislation -- privatization.

When a government agency delegates a public function to a private contractor, records created through the performance of a public duty that would have been subject to public disclosure can become private records -- solely by the virtue of the contractor's non-government status.

Private enterprises serve managers, owners and shareholders -- not taxpayers. And according to fundamental democratic principles, governmental services conducted by private operators should be just as accountable as services provided by public agencies.

That s a key conclusion to a research paper published last year by assistant professors Matthew D. Bunker and Charles N. Davis.

Sheila Ashcraft, executive director for the American Court and Commercial Newspapers, said it is partly her job -- as well as NNA's -- to shake people by the shoulders when legislation endangering access is introduced.

Ashcraft's group, which consists of 100 niche-market papers, have been buying government data for years.

While no one can disagree that enhanced access comes with a cost, no one should be granted exclusive rights to hold, manage, or sell what is already public property.

(To get a copy of the NNA report, which is due to be published in March, call David Mendes at 703-907-7916.)

News bytes

(To contribute to News Bytes, please fax your items to 317-633-1038.)

Obscenity standards run amuck
Chicago media groups in early January successfully battled a change in the state's obscenity law. The bill would have allowed each of 102 counties to set its own standard. The Illinois Senate passed the bill 40-14 before media groups organized. Instead of promoting community standards, it would have imposed the most restrictive standard upon the entire area in which a publication is distributed or electronic media are broadcast. The House vote was 52-49, with House Democrats united against the bill. Sixty votes were required for the bill's passage.

Source: Chicago Journalist, published by the Chicago Headline Club.

Utah's new on-line FOI network
Utah SPJ in cooperation with the Utah Foundation for Open Government has launched the Utah FOI Network. Subscribers to the network will receive periodic UTAH FOI Alerts via e-mail and fax. In particular, the network is seeking to establish contact persons in Utah newsrooms, schools and universities. For more information, contact Joel Campbell, Assistant City Editor, Deseret News, 135 S. Regent Street, Salt Lake City, UT, 84110. Campbell is Utah's State Sunshine Chair and is also a board member of the National Freedom of Information Coalition. (801-237-2100 or joelc@desnews.com)

Student Press Law Center puts access letters online
Those seeking access to public records of state and local government agencies have a new tool to aid in their effort: an automated, state-specific open records request letter generator available for free via the Internet.

The service is free and anonymous offered by the Student Press Law Center. A database provides the relevant statutory citations, time limits, penalties and other information mandated by the open records laws of each of the 50 states and the District of Columbia. The requestor can print the letter generated so it can be mailed or delivered to the agency holding the records. To reach the generator, point your Internet browser to: http://www.splc.org/ltr-sample.html

(For more information, contact Mark Goodman at 703-807-1904)

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