Score one for the people.
A legal opinion from Arizona Attorney General Tom Horne released this week makes it clear: Public bodies, like towns and police departments, cannot charge a fee to people who want to look at and use their own devices to copy public records. They also must charge the actual cost of making a copy, which contradicts some agencies’ practices of charging a flat fee for each police report, for example, no matter the number of pages.
Horne’s opinion was issued in response to a request from the state’s ombudsman, who sought legal advice after Arizonans, including the Star’s Carli Brosseau, reported that law enforcement and municipalities were charging a “copying fee” when no actual copies of documents were requested.
Media outlets, such as the Star, often use the state’s public-records and open-meetings laws to investigate and report on government agencies, but it would be an error to view this as a victory only for newsgathering operations.
Public-records and open-meeting laws protect the right of all Arizonans to examine what our government agencies — those we support with our tax dollars — are doing. It’s a right that should not be taken for granted or left unexercised.
The attorney general’s opinion does not carry the weight of a court decision or law, but it offers guidance and protection to public employees who follow its guidance. Courts also take such opinions into consideration when examining cases.
Any roadblock put up to stymie citizens’ ability to examine their governments’ operations must be strongly and publicly opposed. It does not matter if the obstruction stems from a public employee’s ignorance of the open-records law or a more organized effort to limit what information is released. The result is the same overreach of government power at the expense of the public it is supposed to serve.
The attorney general’s analysis is straightforward: Public agencies cannot use the portion of the statute that allows agencies to charge “copying fees” even when the requester wants only to examine records, not to ask the public agency to make copies of documents.
The rationale, which the legal opinion swiftly dismantles, is that agencies had to make a copy of a document in order to make the public record available for release — making a copy of a police report to redact some information, for example. State statute does not allow such an elastic interpretation of the “copying fee” provision, Horne states.
Government agencies, according to the opinion, are also not permitted to charge a “copying fee” if the requester copies the documents using a personal device, such as a scanner or camera phone. From the opinion:
“When a public body has the facilities to copy records, but the requesting party would rather make copies using a personal device (to avoid a fee), this legislative intent must govern to avoid an absurd result, i.e., charging a fee for a service (copying) that the public body does not provide.”
It follows, then, that government agencies would be contradicting the opinion should they attempt to keep the public from scanning, or taking a photo, of public documents. Technology often outpaces governmental policy, and it would be nonsensical for a person who is reviewing a public record to be prevented from making a digital copy .
We have been critical of Horne for opinions that appear designed to advantage a particular political point of view.
In this instance, however, the constituents served are the people of Arizona. The legal opinion is written plainly, not in legalese, and provides easy-to-understand analysis.
Horne’s legal opinion on public records should be required reading for every public employee and government official.