Bad bills never die


February 17, 2017 8:06 PM

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One of Mike Pence’s finer moments as governor was his 2015 veto of a bill that would have allowed public agencies to charge a search fee for public records requests. Now that Pence has gone on to bigger things, the bill is back. (Thanks, Trump!)

House Bill 1523 passed the Indiana House this week by a vote of 62-25, and the Senate almost certainly will pass it as well. So the question is what new Gov. Eric Holcomb will do if and when the bill reaches his desk.

On the broad subject of open government, unfortunately, Holcomb is something of an unknown quantity. He had an opportunity to put forth his views last year during the election, when the Indiana Coalition for Open Government surveyed the gubernatorial candidates about matters of public access. But the Holcomb campaign failed to respond to the survey.

HB 1523, then, will give us our first barometer reading on where Holcomb stands when it comes to open government. Under the proposal, the Access to Public Records Act would be amended to allow agencies to charge up to $20 per hour for public records searches that take longer than two hours. Officials say they need the fees to offset the costs of fulfilling complicated and time-consuming requests for public records and data. Here’s why that is a bad idea:

First and foremost, we’ve been presented with little, if any, evidence that such records requests are actually posing an undue burden for public agencies. The Legislative Services Agency says as much in the bill’s fiscal impact statement. The key sentence: “There are no data relating to public records searches or search times.” In other words, we don’t have a clear picture of how many searches take longer than two hours. Based on years of talking about public records requests with officials, journalists and members of the public, I suspect it doesn’t happen all that often.

Notice I said “undue” burden above. That’s because complying with records requests is, under our law, an integral part of the routine duties of public agencies. It’s not a nuisance for which the government should be able to recoup costs. Public records, in fact, have already been bought and paid for by tax dollars. For an agency to complain that fulfilling records requests consumes public resources is something akin to a police department complaining that solving crimes takes time and money. Here’s the deal – that’s already part of the budget.

What HB 1523 mainly does is provide government agencies one more reason to delay and/or deny legitimate requests for public information. It should be said that most public officials are not out to actively subvert the public’s right to know. But agencies naturally tend to do the minimum that is required of them when it comes to public records. They already have 13 categories of records they are not allowed to release and 26 categories that they can choose to withhold for no particular reason. Do they need yet another avenue to avoid public disclosure? No, they don’t.

It might be said that $20 an hour is not really all that much money. That is true if you work for a news organization or another business that will cover the cost. But that price tag may well discourage regular citizens from even making public records requests. In that vein, a search fee would stand in direct opposition to the spirit of the access law.

A final point that should be addressed is the support HB 1523 enjoys from the Hoosier State Press Association, normally a rock-ribbed supporter of open government. While I know and respect the organization’s efforts to fight for public access issues at the Statehouse, I disagree with its position on this bill.

One of HSPA’s key arguments is that while the bill introduces a search fee, it also contains a separate provision that will work to increase the public’s ability to obtain records and data. The provision would make clear that agencies must provide electronic data in its original format if a requester prefers. In other words, if you seek a copy of a database, the agency won’t be able to give you a printout instead.

That portion of the bill is indeed favorable to the public. But I think it’s a bad bargain, because separate language in the statute already requires agencies to make reasonable efforts to provide electronic records in their native formats. To the extent they are not doing so, they need to be challenged. What they don’t need is a search fee, which, as Pence put it when he vetoed the 2015 bill, will serve only as “a barrier to the public’s right to know.”

Gov. Holcomb has been making headlines for departing from precedents set by his predecessor. If this bill makes it out of the legislature, let’s hope he follows Pence’s example instead.

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