Bills raise public records issues on costs, expunction
By Robert Nott
State Sen. John Sapien says he wants the general public to bear a greater share of the cost for public records.
Sapien, D-Corrales, has introduced a bill that would require people to pay up to a dollar per page for electronic copies of these documents.
“It’s not nefarious,” he said of his Senate Bill 442. “The reality is public records cost money, and the time and energy put into putting together an electronic copy of a request is the same as a print copy.”
Sapien said his proposal is not a step away from transparency.
Melanie Majors, executive director of the New Mexico Foundation for Open Government, disagrees.
“Agencies should never attempt to prevent access to public records by charging excessive fees,” Majors said.
The state Attorney General’s Office last September issued an opinion that said the University of New Mexico violated the state’s Open Records Act when it charged a fee of $586.60 for an electronic public record.
After that decision, Sapien said, state agencies were “deluged” with requests for free electronic copies. But the attorney general’s opinion allows a “reasonable” fee of up to $1 per page for printed copies of those same records. It is not clear how many agencies charge as much as $1 per page at this point.
Sapien said his bill would simply enact a law allowing those fees to be equal for electronic or print copies.
He said each state agency could determine how much it would charge for an electronic copy, and it would not necessarily be a financial hardship for members of the public.
But Majors said most of those documents probably already exist somewhere in digital form. A government agency could provide them with “a few clicks of a mouse” entailing little staff time or cost.
The question of whether governments overcharge for public records has been in the spotlight nationally. Critics say the system for accessing federal court records, commonly called Pacer, has enriched itself at public expense. Obtaining records through Pacer costs at least 10 cents a page, far more than the cost of providing them.
Majors said her foundation also opposes Senate Bill 370, which would give people wrongfully accused of a crime or convicted of nonviolent crimes the right to petition to have those records expunged.
“Today an arrest is just as damning as a conviction,” said Rep. Antonio “Moe” Maestas, D-Albuquerque, who introduced the bill. “So even if folks have no criminal conviction following an arrest, they have to explain it.”
Rep. Andrea Romero, D-Santa Fe, and Sen. Bill O’Neill, D-Albuquerque, have signed on as co-sponsors.
The bill would bar expunction of records on homicide, crimes that cause bodily harm, sex crimes, crimes against children and driving while intoxicated.
Maestas said erasing other criminal records can be sensible.
“Should a single drug-related arrest prevent you from getting a commercial license 10 years down the line?” he asked. “A felony record at age 15 can impact you at age 50.”
And, he said, the bill would help victims of identity theft who are wrongfully accused of crimes.
Majors doesn’t buy much of Maestas’ argument.
“This bill forces legislators to decide whats more important — the public’s right to know or a convicted criminal’s right to a second chance,” she said. “”There should be no restrictions on the dissemination of public information.”
She said the bill is “another attempt to chip away at transparency. When does it end?”
Maestas, as well as former Senate Majority Leader Michael Sanchez, D-Belen, twice got similar expunction bills through the Legislature. Then-Gov. Susana Martinez, a Republican, vetoed those measures.
Last week Romero introduced a bill that proposed to fine private companies if they did not remove “damaging” or “excessive” information about people from their websites.
Romero withdrew her legislation less than 24 hours later, after taking heat from critics who said she wanted to undermine the First Amendment and use state government to police disputes in the private sector.
Sapien’s bill is to be heard by the Senate Public Affairs Committee. Maestas’ proposal goes first to the House Consumer and Public Affairs Committee.