All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, should be open, accessible, accountable and responsive. To that end, the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.
— New Hampshire Constitution, Part 1, Article 8
Some local government officers in New Hampshire (and elsewhere) have reported being burdened by what they view as unreasonable requests for massive caches of records.
House Bill 1002 attempts to address these complaints. It would allow public bodies to charge up to $25 an hour for the time taken to fulfill a public records request when a request lasts more than 10 hours. The fees would not apply to the first 10 hours, but would kick in at the start of the 11th hour.
In effect, the bill would tax any public record request that public officials say takes longer than 10 hours to fulfill.
The perverse incentive created by HB 1002 is obvious. If it becomes law, public officials would have a new incentive to take as much time as possible to answer public records requests. By expanding the estimated time taken to fulfill requests, government agencies could discourage requests they view as burdensome or annoying.
Government officials who testified in favor of the bill in Concord said it was needed to discourage frivolous, harassing and financially motivated records requests. Legislators were told that out-of-state companies request data that is then monetized, and that citizens file requests just to harass government employees.
But this bill does not narrowly target those problems. It applies a fee to any request that a governing body can stretch into 10 hours worth of work.
The inevitable effect will be to reduce government accountability by reducing public access to public records.
A study of high records request fees published last fall in Government Information Quarterly found that “fees are particularly problematic for certain requester types, notably average citizens and those seeking records in the public interest, and that fees may therefore obstruct the public’s ability to become informed and better self-govern.”
Lawyers and companies seeking data for commercial purposes did not see high fees as an impediment to making public records requests, according to the survey.
This suggests that the approach taken by HB 1002 would reduce government oversight while doing little to discourage financially motivated documents requests.
If harassing or overly broad records requests really are a serious problem in New Hampshire (all we have are some anecdotes), legislators can devise a more narrowly tailored remedy that does not suppress legitimate records requests made in the public interest.
Fees that apply only to data sought by commercial actors for strictly commercial purposes (which would exempt news media and citizen requests) might be an option, though it’s not at all clear that such requests are so burdensome that they require a legal remedy.
Requests made for the purpose of disrupting government work or harassing government employees should be addressed through statutes prohibiting harassment, not by imposing fees on citizens who want access to records that, after all, belong to them.
One reason public records requests can take many hours to fulfill is that government agencies often have poor records retention practices. Citizens shouldn’t be punished for disorganization in government bureaucracies.
Providing ready access to public records is a core government function, not an add-on. Good management involves properly organizing and staffing the agencies tasked with storing, managing and producing public records. Charging people extra for the time it takes to produce poorly organized documents will do nothing to improve the organizational efficiency of government bureaucracies and might actually discourage it.
The core conceptual flaw in HB 1002 is that it treats public records as government property and access to those records as a burden on government employees.
In fact, public records belong to all citizens, and government employees are merely custodians of those records on behalf of their citizen owners.
Currently, public agencies can charge for making copies of public records. That distinction is important. Copying fees are permitted because the charge is for the duplication, not for access to the record.
HB 1002 crosses an important line. It imposes a fee just for accessing the records. That upends the relationship between citizen and government. It gives government the ability to withhold public records from any citizen who can’t afford to pay.
“A system that puts a price on it is on its face discriminatory,” Rep. Marjorie Smith said when opposing the bill a House Judiciary Committee hearing earlier this month. “It is going to, on its face, hurt people at the lowest end of the income scale. It is going to set up different classes of people as to whether or not you’re entitled to get information.”
The decline of print journalism has decimated newsrooms in New Hampshire. With fewer reporters covering local and state government, sometimes the only people providing any government oversight are citizens who watch public meetings and file public records requests. Empowering government to charge for access to those records would further shrink the already tiny level of government oversight that remains.